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Not Just An Increase In The Number Of Justices [1]

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Date: 2022-07-06

I recently received an email questionnaire asking if I supported aspects of policies being discussed lately such as Supreme Court Expansion or Abortion. Some of you may have seen this petition but for those that have not here is some of what the particular poll asked:

- Do you support expanding the Supreme Court?

- Do you identify with the 7 in 10 Americans who support term limits on Supreme Court justices?

- Do you agree that we need to expand the number of justices on the Supreme Court to balance against the 6-3 conservative super majority on the Court?

- Current polling suggests only 3 in 10 Americans approve of the Supreme Court: Do you approve of the current Supreme Court?

- Do you support calls to investigate Trump appointed Justices Coney Barrett, Kavanaugh, and Gorsuch for lying under oath about overturning Roe v. Wade?

- Are you one of the 8in 10 Americans who believes abortion should remain legal and should be treated as a protected right?

The originators of the email were from the Democrat Party but the questions are germane to be asked of every citizen in America, whether they have declared themselves to be Republican, or Democrat, or Independent.

Since SCOTUS is the last stage in issues that have a large impact on our society it is SCOTUS which bears the most discussion at this time in our lives. Sure there are many many huge issues do be discussed and not specifically highlighted in this poll but each and every one of those huge issues will have the direction the country will take determined by the Supreme Court decisions. A point in fact is the recent SCOTUS decision on abortion and what that has triggered in our society.

It is my opinion that SCOTUS is fundamental to us and our society. We have frameworks within our republic that have been built around an efficiently working Supreme Court. Every institution must have ingrained within it understood and accepted core values. These are the values, along with The Constitution, that they swear to adhere to. As such it is important that certain ‘rules of thumb’ provide the guideposts to what our Supreme Court must be held to account. Most of these guideposts may be thought of as pretty basic but, without having a method to manage adherence to theses tenants, means that the ‘wiggle room’ will be employed by anyone that has a desire to skew the intent, and dare I say, the trust we have in adhering to the decisions of our Supreme Court. The Supreme Court serves the people, not a party or an office or a person or an ideology. The Supreme Court interprets and follows the law and when the law is in need of change then it is up to the Supreme Court to indicate that changes are needed. The Supreme Court needs to have all of the above put to paper and available to the people adequately representing what their role within our society is.

I think we can all agree that when The Constitution was written there was no way the founding fathers could have anticipated the nature of our society 200 years in the future nor the nature of technology we have become immersed in and depend on. And so we have SCOTUS interpreting the framework and, given what we know now and what we have now within our society, it is important that SCOTUS not drag us down to the ‘old’ but keep us on the track of the ‘new’.

It is no secret we no longer support owning slaves or that we have women’s rights that are as inalienable as men’s rights or that our society has human rights equally applicable to all citizens. It is ridiculous for the Supreme Court to apply parts of the framework which would deny the equality of the sexes to have control over their own person, and yet SCOTUS has done that with their recent Roe v Wade ruling.

One of the expectations of the Supreme Court is that they provide rulings for the people, for today, in our society that exists now, and within the expectations of the people and not to the absolute and ‘old’ writings within the framework that have become nonsensical over time. If that means a portion of those writings need to be brought into the 20th century then that is a role that SCOTUS has to take on and stick handle through.

My first expectation then of any SCOTUS discussion would be that the core values, tenants, rules of thumb, etc. be well defined and codified in law. An appointee to the Supreme Court must follow these and failure to do so means they may be removed from the Supreme Court. Naturally there will need to be legalized terms, procedures, oversight, etc etc etc but it is fundamental that members of the Supreme Court have a well defined and publicly available framework that Supreme Court justices are held accountable to. While a Supreme Court justices is ‘appointed’ to a life term that life term cannot be so open ended that they have absolute free reign over any and all actions they take. Sure they should not be second guessed in their decisions but realistically neither should they be allowed to take us back to a time 200years ago just because there are ‘old’ words within the framework that have no basis in our society of today.

Every decision by the Supreme Court must be provided to and ‘accepted’ by the people or their representatives. Again there will need to be hard and fast guidelines for how that takes place but decisions by SCOTUS that affect us and our society ‘now’ in the today need to be provided in writing to the people, they must be read, understood, and agreed upon before they become the law of the land. A well defined process for how to do this is required.

Currently SCOTUS handles their own ‘definition’ and ‘accountability to’ within closed door internal discussions. If they believe they are OK on their actions then they do not change anything. This does not work well because if SCOTUS is ‘right’ leaning or ‘left’ leaning then their interpretations of acceptable actions get skewed to the right or the left. How can that inconsistency in the definition of what SCOTUS represents to the people depending on who is on the court be acceptable to the people? We say that SCOTUS is ‘supposed’ to be non-political and yet we all know that SCOTUS appointees are defined as Republican appointees or Democrat appointees and ideologies from the right and the left are allowed to infiltrate the decision making of SCOTUS. Anyone that does not believe SCOTUS has been politicized just has to look at the recent abortion decision and how that decision has done more to divide us. It is not so much the decision, it is rather the explanation for how the decision was arrived at, what the ‘old’ writings of the framers meant, and how this decision seems to have been ‘baked into the pie’ when certain justices were appointed, regardless of the outcry from the people that have to live within this decision in our society of today.

Supreme Court justices need to be held accountable, by the people. They need to be removed from the bench if they do not adhere to their work guidelines as defined and available to the people. When a SCOTUS appointee is confirmed they take an oath and that oath is binding and should be used as part of the assessment of their performance. All SCOTUS decisions must be posted and are the property of the people and have to be accepted by the people. A SCOTUS decision that divides America cannot be left as the outcome of an issue we have sent to them to have understood, debated, arbitrated, and provided a decision on.

As for the question of increasing the number of justices, with or without the above defined guidelines I believe having more justices in ONE Supreme Court just means there will be more of the same that we are seeing now with more people. The Supreme Court that currently exists is over loaded. We have, as a society, so many pressing issues that have such an impact on us that by the time the existing Supreme Court gets to bringing them forward or debating them and arriving at a decision we, the people, have suffered and struggled and been left wanting. Expanding the court so ‘more’ get added to the existing number of justices brings us to a suggestion made by and appointments suggested by, wait for it, a Democrat administration. If/when Republicans make up the administration what is to stop yet again ‘more’ being added to ‘balance’ things (non-political, hah, in a pig’s eye). The Supreme Court does not become trusted or better because of numbers. Politics has already given the existing court a black eye and they have a huge amount of baggage they are currently carrying around with each and every decision they make.

To get a trusted SCOTUS I suggest that instead of increasing the numbers within the ONE court that the change that is needed is a SECOND SCOTUS body. Not a secondary or junior or other Supreme Court. But an additional court with the same expectations and mandate and seniority/importance as the existing current Supreme Court. Appointments to this SECOND court have the understanding that they make be replaced if they fail to uphold their end of the reason they were appointed to the bench in the first place. In the current court, the justices have as their ‘understanding’ that it is an appointment for life and as such it will be hard for that ‘understanding’ that they have to be removed (even though the existing court had no problem removing a woman’s right to controlling their own body with the Abortion decision it is important that the current SCOTUS not be given a ‘what-about-ism’ platform to fend off the creation of a SECOND SCOTUS body).

This SECOND SCOTUS body would start with five justices and grow to have the same number of justices as the existing court (nine). This would take several administrations to fill as this SECOND court may be expanded by one justice every second year from when it is established until it reaches the nine. This gives an administration and regardless of which administration, and equal chance to appoint their preferred candidate.

Candidates will be suggested by the administration and go through confirmation hearings and be appointed by the Senate as is done currently. They will, however, not be under the disillusionment that they are a ‘for life’ appointee. They will have to be assessed for their performance on an every three year basis and that process and details need to be well defined. Criteria for how they may removed from the bench will be developed and better understood over time.

The SECOND SCOTUS court commences as soon as the five justices are in place and between court ONE and court TWO they ‘draw’ their cases through an open process of pending cases waiting for a SCOTUS calendar date. Court ONE may draw the consideration for the methods we handle immigration through the southern border while court TWO may get the pending consideration for addressing guns within our society. The selection for which SCOTUS group of justices gets which pending court case is 50/50 and as such that means any ‘stacking’ that may have favored the current court (court ONE) is not assured. Having two courts will allow twice the number of SCOTUS cases to be handle over the existing number and will help to reduce the ‘sting’ of partisan political appointments that have skew the current SCOTUS body.

While the current abuse seen coming from the current SCOTUS court manned with justices that have exhibited ideological political bias will take some time to reconcile the fact there is a SECOND SCOTUS court makes more sense than just expanding the number of justices on the existing court ONE. Making sure there are well defined core traits expected within the Supreme Court from appointed justices allows Americans to start to regain their trust within a valuable institution.

The above is an idea and requires a lot of work but, in my opinion, what we have currently as a Supreme Court structure has shown the cracks and to refrain from doing anything other than just increasing the number of justices in that court is very short sighted and addresses none of the issues that have chipped away at this important body over time, and from ideological administration to administration.

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[1] Url: https://www.dailykos.com/stories/2022/7/6/2108784/-Time-For-SCOTUS-TWO-To-Complement-SCOTUS-ONE-Not-Just-An-Increase-In-The-Number-Of-Justices

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