A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.
The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years."
The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School.
Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought -- the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "
In its letter to the public officials, the group notes that Congress has given "scant attention" to the role and structure of the third branch since the "Court-packing" proposal of 1937.
"With rare exception, it has wisely entrusted the law governing that Branch to the Judicial Conference of the United States that it established in 1922," the letter states. "But given its inherent limitations, the Conference has been unable to consider issues arising from the work of the Supreme Court. From time to time, the other branches of the federal government need to reconsider how the judicial branch has evolved, and adapt it to changed circumstances."
The four proposals would do the following:
First, regular biennial appointments of new justices selected by the president and Senate in order to assure timely rotation within the membership of the Court. If an appointment results in more than nine justices, the nine who are junior in time of service would sit to decide each appeal certified for decision on the merits. The proposal also would create senior justices. This proposal was signed by 30 of the 33 members -- the greatest support.
"Our proposal is not a term limit but a system of rotation to assure some regularity of change in the composition of the court," the proposal explains. "If necessary to meet the constitutional objection, the allocation and assignment of duties when there are more than nine active justices could be left for the Justices themselves to resolve by a rule of court."
Second, the proposal states that it would be the duty of the chief justice to advise a justice who can no longer perform his or her duties to retire and report that to the Judicial Conference of the United States. The Judicial Conference then would be required to advise the chief judges of the federal circuits of the report. If a majority of those judges find substantial evidence of disability, they must report that finding to the House Judiciary Committee.
Third, this proposal would limit the term of a chief justice to seven years, subject to automatic extension until the president is authorized to appoint a new justice or until resolution of any pending impeachment proceeding over which the chief justice is needed to preside.
"Over time, the powers and responsibilities of that office have been extended into numerous other political, administrative, and non-judicial roles calling for a measure of special accountability for the justice holding office as Chief," the group explains.
Fourth, under this proposal, a body of experienced appellate judges would have the power to designate a substantial number of cases that the high court would then be required to decide on their merits. The justices could add to that number. This proposal was signed by 19 members of the group -- the least amount of support among the four proposals.
"This would be intended to correct the steady shrinkage of the docket and engage the Supreme Court's attention on matters selected by persons suitably independent of the Justices and their personal or professional concerns," the proposal states. "It would also correct a visible tendency of the justices to place greater reliance on their staffs, a practice increasingly replicated at all levels of the judicial system."
Veteran Supreme Court litigator Alan Morrison of American University Washington College of Law said, "I very much support the regularization of appointments and the proposal on the inability to perform. I think the notion about the certiorari process is worthwhile. I'm in favor of those issues being discussed."
Both Morrison and Carrington said some of these ideas have been the subject of recommendations for a number of years by prominent advisory committees.
"It's not a subject that has a constituency," said Carrington. "Judges pretty much like things the way they are, although in private, some will say they'd sign on to all four of the proposals."
Carrington said the "easiest" proposal to endorse and adopt is the one on disability of a justice. "It's hard to make an argument against calling attention to the fact that some justice is totally disabled. What's the answer to that?"
The most "complicated" proposal in some ways, he suggested, involves the chief justice. "Somewhere along the way the chief justice has acquired more and more political and administrative responsibilities," he said. "There's a pretty good argument that the job ought to be accountable to someone."
Carrington said he hopes one of the congressional committees would hold a hearing on the proposals.
"Given the history of it, nothing may happen, but, gosh darn it, they do need to think about it," he added. "I think all four proposals are reasonable and not reckless."