February 25, 2009

Odor in the Court

Bob Woodward wrote in The Brethren that during Justice Douglas' last days on the Supreme Court, his incontinence bag used to stink up the chambers when they'd convene to debate cases... As if the aroma of Chief Justice Burger's legal arguments weren't stanky enough!

Friends, this sort of thing ought not occur; to say nothing of forcing the likes of Justice Stevens to hang on to his gig for, lo, these last eight years, while his contemporaries got to hold mid-afternoon court at Luby's, gorge on all the raspberry Jell-O they damn well please and watch the Wheel like normal dustcook- uh, i mean...Golden Agers. (Psst! It's OK to retire now, Justice Stevens - we won the last election! Quick, before another voter ID law comes up for review!)

That's why an organization affiliated with the "I've Been Thinkin'..." Coalition have come out with their own ideas for reforming the Supreme Court.

(For those of you unfamiliar with the "I've Been Thinkin'..." Coalition, it's a fairly new D.C. thinktank, chiefly established to counter the They Say Institute's intellectual hegemony inside the Beltway.)

Of course, I have a few ideas of my own on how to improve the court. Like not letting it decide presidential elections when there are more Republicans than Democrats on the Court. But since no one's publishing MY bright ideas on the subject, guess I'll just have to settle for weighing in on these proposals.

It seems to me that this idea for a senior justice status might solve a couple of problems. Number one, you address that whole problem of ancient justices being out of touch with society. Do you really wanna hash out a constitutional issue like gay marriage before judges who still think "gay" refers to how we'll all feel when Johnny comes marching home? Letting the 9 newest members of the Court decide these kinds of issues has some logic to it - and the senior justices can still weigh in with all their acquired wisdom and institutional memory...if indeed anyone with a vote happens to care what Statler or Waldorf might have to say on the subject.

Number two, (that's what Justice Douglas' nurse said!) you solve this problem of justices in ailing health clinging to their appointment if the job isn't worth as much in the fourth or fifth decade. That all but eliminates the need for this other weird idea to have justices "report" on each other when their health goes bad. And can't you just imagine how THAT idea would play out? First Scalia would rat on Ginsberg's osteoporosis, then Breyer would retaliate and out Thomas for having an enlarged prostate, back and forth, etc. etc. No thank you. Only people deranged enough to voluntarily read Woodward should be punished with that kind of information.

That said, the idea to have one court appointment per two-year congressional term is insanity. Really, one per presidential term is enough to strike a balance between the competing needs for continuity and new blood. Anything more frequent would be destabilizing and you'd wind up with something like what the Texas Supreme Court had a few years back. Those guys had such a turnover problem for awhile that it really created confusion. Sure, everyone still knew the outcome in any given case was probably "plaintiff loses," but nobody could keep track of exactly which 9 justices would get to say so.

The certiorari division idea strikes me as the idea most prone to the rule of unintended consequences. I'm not convinced the current system is broken on deciding whether to grant cert. And can you imagine the gamesmanship if opposite factions happened to control the Court and the cert. division? Trust me, granting cert is complicated enough without adding this new dimension. As Tracy Morgan in drag might say while impersonating Star Jones, "I know, because I'm a lawyer." And I read The Brethren.

Posted by hbalczak at February 25, 2009 09:15 AM

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