Beruflich Dokumente
Kultur Dokumente
Ellen Knight*
INTRODUCTION
1*
Juris Doctor, cum laude, New England Law | Boston (2018). B.A., cum laude, University of
Rhode Island (2009). I wrote this Note in 2017 during my third year of law school as an
evening student. I would like to thank my friends and family for their unwavering support. I
would also like to thank the New England Law Review members for their work to make this
publication possible.
Adam Liptak, John Roberts Criticized Supreme Court Confirmation Process, Before There Was a
Vacancy, N.Y. TIMES (Mar. 21, 2016), https://perma.cc/QAZ5-WV85.
2
See Lucas A. Powe, Jr., How Supreme Court Nominations Became So Contentious, WASH. POST
(Feb. 19, 2016), https://perma.cc/Z97G-WDQS.
3
See Tom LoBianco, Democrats Ready for Gorsuch Battle on Capitol Hill, CNN (Feb. 1, 2017, 3:08
AM ET), https://perma.cc/K3SB-NSF6; Michael D. Shear & Adam Liptak, A Supreme Court Pick
is Promised. A Political Brawl is Certain, N.Y. TIMES (Jan. 24, 2017), https://perma.cc/7CG5-VAPC
(“This is a Supreme Court seat that was stolen from the previous President.”).
4
See Matt Ford, This Just In: Scalia Dies, THE ATLANTIC (Feb. 13, 2016, 5:42 PM),
https://perma.cc/4Z3R-PGL6/ (discussing the news of Justice Scalia’s death and his many
accomplishments on the Court).
5
See Bill Chappell & Carrie Johnson, Merrick Garland is Named as President Obama’s Supreme
Court Nominee, NPR (Mar. 16, 2016, 7:58 AM ET), https://perma.cc/3UN9-BCBQ (“Garland has
earned bipartisan support . . . from senior Republican figures that include Utah Republican
Sen. Orrin Hatch.”).
6
See Ian Millhiser, Who is Merrick Garland?, THINK PROGRESS (Mar. 16, 2016, 1:56 PM ET),
https://perma.cc/3EE3-CHTX.
1
2 New England Law Review [Vol. 52 | 3
the nominee or vote on his proposed nomination. 7 Judge Garland’s
nomination expired on January 3, 2017.8
During his campaign, President Donald Trump comprised a short list
of potential nominations for the vacant seat on the Court. 9 On January 6,
2017 Senate Minority Leader Charles Schumer stated the Senate Democrats
would block any nomination made by President Trump or the
Republicans, unless it was “bipartisan and mainstream” and would fight
“tooth and nail.”10 The Republicans argued that President Obama could not
nominate a new Justice because he had little time remaining in office and
the American people would choose the next Justice through the newly
elected President.11 Judge Garland has the longest-blocked Supreme Court
Justice nomination in history.12
The United States currently has a system that encourages partisanship
and places the executive and legislative branches at odds over the
judiciary.13 Special interest groups put pressure on Senate members to
support or reject certain nominees, which creates an atmosphere of
partisanship in Supreme Court confirmation hearings. 14 Presidents make
campaign promises to nominate Justices with particular ideologies, making
the confirmation process inherently political. 15 In order to change the
current system, the desire to politicize the Court must also change.16
7
See Harold Pollack, How to Fix the Supreme Court Vacancy Mess, POLITICO (Feb. 15, 2016),
https://perma.cc/U7PQ-JWQN.
8
See Amy Howe, Garland Nomination Officially Expires, SCOTUSBLOG (Jan. 3, 2017),
https://perma.cc/VTN6-6UWA.
9
Ariane de Vogue, Examining the Top Contenders on Trump’s Supreme Court List, CNN (Jan. 24,
2017, 6:20 PM ET), https://perma.cc/JG7J-NDGF (noting Trump’s top contenders were pulled
from a pool of “conservative legal circles”).
10
Mallory Shelbourne, Schumer Ready to Leave Supreme Court Seat Open, THE HILL (Jan. 22,
2017, 9:40 AM), https://perma.cc/P2W8-EXDL.
11
See Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a
Person’, NPR (Mar. 16, 2016, 12:31 PM), https://perma.cc/ZUP5-ZR23.
12
See Andrew Strickler, Garland Sets Record for Longest Wait for High Court Pick, LAW360 (July
26, 2016, 4:14 PM), https://perma.cc/MJA6-Q6K9.
13
See William Grayson Lambert, The Real Debate Over the Senate’s Role in the Confirmation
Process, 61 DUKE L.J. 1283, 1290 (2012) (discussing the current confirmation process for
Supreme Court Justices, which consists of two views senators often take when confirming
nominees: assertive or deferential).
14
See Horace Cooper, Tilting at Windmills: The Troubling Consequences of the Modern Supreme
Court Confirmation Process, 33 S.U. L. REV. 443 (2006) (noting that the Supreme Court Justice
nomination process has become more partisan and contentious since the nomination of
Justices under President Nixon).
15
See RICHARD DAVIS, ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS
16–17 (2005) [hereinafter DAVIS, ELECTING JUSTICE].
16
See Michael Comiskey, Not Guilty: The News Media in the Supreme Court Confirmation Process,
15 J.L. & POL. 1 (1999) (discussing how media coverage of the Supreme Court Justice
confirmation process has contributed to the politicization of the Court).
2018] Reformation of the Supreme Court 3
This Note will examine reform of the Supreme Court Justice
nomination process and the structure of the Supreme Court itself to aid in
the separation of politics from the judiciary. Part I will provide a brief
background of the formation of the Supreme Court and its operation in the
early years of the United States. Part I will also discuss how the
transformation of the Court’s purpose and its confirmation process allowed
it to evolve into the Court we have today. Part II will examine how the
entanglement of politics in the Supreme Court has created distrust of the
Court and its decisions. Part III notes that the Court’s involvement in
politics extends current government inefficiency from the legislature to the
judiciary and defeats the intent of the Framers. Part III will also discuss the
importance of the Supreme Court’s isolation from politics and how its
entrenchment in politics has a negative effect on the Court. Part IV will
argue that reform is required in both the confirmation process and also in
the Supreme Court structure itself—including its size and term limits. Part
V will conclude this Note.
I. Background
The United States Constitution sets out in Article III, § 1, “the judicial
power of the United States, shall be vested in one Supreme Court and in
such inferior courts as the Congress may from time to time ordain and
establish.”17 The Framers of the Constitution created this basic structure to
allow the Supreme Court and Congress to determine in what capacity the
Court would act as circumstances within the country fluctuated. 18 It was
not until the Judiciary Act of 1789 that the Court began to resemble the
current arrangement of a single Chief Justice with Associate Justices. 19
The Court first established the ability to review the constitutionality of
laws passed by Congress under Justice Marshall’s decision in Marbury v.
Madison.20 It was not until 1857, in Dred Scott v. Sanford, that the Court
would determine that a federal statute was unconstitutional.21 The
Supreme Court also asserted itself as the final arbiter in the
17
U.S. CONST. art. III, § 1.
18
See Supreme Court History, PBS NEWSHOUR (Jan. 1, 2003, 4:21 PM), https://perma.cc/5NLR-
R4E8 (noting that the early period of the Supreme Court was difficult in determining its duties
and it did not hear its first case until 1792).
19
See 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 11 (2011).
Comically, Thomas Jefferson was against the Justices wearing a wig as their English
counterparts did, stating: “[f]or Heaven’s sake, discard the monstrous wig which makes the
English judges look like rats peeping through benches of oakum!” BERNARD SCHWARTZ, A
HISTORY OF THE SUPREME COURT 15 (1993).
20
Marbury v. Madison, 5 U.S. 137, 147 (1803); see SCHWARTZ, supra note 19, at 22.
21
See Dred Scott v. Sanford, 60 U.S. 393, 455 (1857); SCHWARTZ, supra note 19, at 41.
4 New England Law Review [Vol. 52 | 3
constitutionality of state laws in Fletcher v. Peck.22 Today, the concept of
judicial review is widely accepted by Americans, but this has not always
been the case.23 For example, in 1831, the Supreme Court ordered a stay on
the execution of a convicted Cherokee man until his appeal was heard by
the Court.24 Georgia showed blatant disregard for the Court’s order and
executed the man prior to his appeal.25 President Andrew Jackson
vehemently disagreed with the Court when Justice Marshall later wrote an
opinion that struck down a Georgia statute and acknowledged that the
Constitution did not allow for states to regulate sovereign Indian nations. 26
President Jackson stated, “John Marshall has made his decision; now let
him enforce it.”27 The respect for the Court’s decisions, and enforcement of
those decisions, is common in recent history.28 The Court’s power lies in the
confidence of the American people and the respect of the other two
branches of government.29 Justice Brennan noted that “[t]he act of
interpretation must be undertaken with full consciousness that it is, in a
very real sense, the community’s interpretation that is sought.” 30 Should
the executive branch choose not to enforce the Court’s decisions—or the
American people lose confidence in the decisions—the Court loses its
legitimacy.31
Justices may “hold their offices during good behavior,” which indicates
that Justices have tenure for life, pursuant to the condition. 53 The Court has
always maintained that its members should remain on the bench for life. 54
This was intended to ensure judicial independence for its members and to
shield them from the outside influence of elections. 55 Alexander Hamilton
was a great supporter of the good behavior requirement because he
believed it would safeguard judicial isolationism while keeping Justices in
check.56 Due to advances in medicine, the average tenure of a Justice has
increased from roughly seven and a half years from 1789 to 1820 to over
twenty-six years from 1971 to 2006.57 It may have given the founding
fathers pause to know that a Justice’s tenure could be longer than the rule
of a medieval monarch.58
The size of the Court has varied throughout history.59 Originally, the
Court had six members who would travel to different circuit courts. 60
Justices heard cases throughout the circuits, which occupied most of their
time.61 Congress continued to add a member of the Court each time a new
52
See Paul E. Vaglica, Step Aside, Mr. Senator: A Request for Members of the Senate Judiciary
Committee to Give Up Their Mics, 87 IND. L.J. 1791, 1792 (2012) (discussing inefficiency and lost
purpose of the confirmation process for Supreme Court Justices).
53
U.S. CONST. art. III, § 1.
54
See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure
Reconsidered, 29 HARV. J.L. & PUB. POL’Y 769, 777 (2006); Stuart Taylor, Jr., Life Tenure is Too
Long for Supreme Court Justices, THE ATLANTIC (June 2005), https://perma.cc/8SZB-WVT3.
55
See Calabresi & Lindgren, supra note 54, at 777.
56
See Lyle Denniston, Constitution Check: Should Supreme Court Justices Have Limits on Their
Time in Office?, NAT’L CONST. CTR. (Sept. 24, 2013), https://perma.cc/2SEP-MBFU.
57
See Calabresi & Lindgren, supra note 54, at 778–79 (noting Justice Douglas served over
thirty-six years and Justice Black served over thirty-four).
58
Taylor, supra note 54.
59
See F. Andrew Hessick & Samuel P. Jordan, Setting the Size of the Supreme Court, 41 ARIZ. ST.
L.J. 645, 647 (2009) (“Each of the six times that Congress has changed the size of the court, the
motivation has been something other than a judgment about which size would be best for the
Supreme Court as an institution.”).
60
See Craig S. Lerner & Nelson Lund, Judicial Duty and the Supreme Court’s Cult Celebrity, 78
GEO. WASH. L. REV. 1255, 1264 (2010); Jonathan Turley, Is the Supreme Court Too Small? A
Proposal for the Expansion of the United States Supreme Court, RES IPSA LOQUITUR (June 22, 2012),
https://perma.cc/45UP-GAXY [hereinafter Turley, Supreme Court].
61
See Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal,
90 MINN. L. REV. 1386, 1391 (2006).
8 New England Law Review [Vol. 52 | 3
circuit was added.62 Eventually, the Justices were able to convince Congress
to abandon the idea of the members riding to different circuits and instead
allowed the Justices to remain in one chamber. 63 By 1863, there were ten
sitting Justices, corresponding with the ten circuits. 64 In 1869, Congress
settled on nine Justices for the Supreme Court.65 This was the last major
reorganization of the Supreme Court.66 The topic of the Supreme Court size
was not again broached until President Roosevelt, in 1937, suggested
membership be raised to fifteen to furtively prevent his New Deal
legislation from being struck down as unconstitutional.67
While the United States has nine Justices in its highest court, other
countries’ high courts hold larger numbers. 68 India, a fellow former British
colony,69 sits up to thirty-one Justices. 70 Due to the size of the Indian
Supreme Court, it has the ability to hear more cases, which provides the
public with greater access. 71 This makes the Indian Supreme Court more
approachable.72 The United States also has courts with a high number of
sitting judges.73 Federal appellate courts gather all the sitting judges in the
circuit to hear cases that are very important. 74 This is done because the
appellate courts believe cases with higher importance or complex issues
deserve the consideration and opinion of other judges. 75 Also, the courts
believe that hearing cases en banc ensures that the decisions reached by the
court will be better received because more judges reviewed the matter. 76
62
See Turley, Supreme Court, supra note 60.
63
See Turley, Supreme Court, supra note 60 (noting Justices hated riding the circuits and sitting
as judges in lower courts because travel was long and arduous).
64
See Hessick & Jordan, supra note 59, at 669 (noting that the addition of California and
Oregon created the tenth circuit).
65
See Hessick & Jordan, supra note 59, at 670.
66
Last Major Circuit Reorganization, FED. JUD. CTR., https://perma.cc/UWV7-R5CR (last visited
Oct. 15, 2019).
67
See Hessick & Jordan, supra note 59, at 670–71.
68
Turley, Supreme Court, supra note 60 (“Germany (16), Japan (15), United Kingdom (12), India
(31), Israel (15)”).
69
See Nick Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S.
Supreme Courts, 61 AM. J. COMP. L. 173, 175 (2013) (noting the impact that the size of the Indian
Supreme Court has on its legal system).
70
Id. at 182.
71
Id.
72
Id. (“[A]nyone who has suffered a violation of a constitutional right—from the poorest
villager in the tribal areas of Jharkhand to the wealthiest business man in a high rise in
Bombay—can appear before the panel of the Supreme Court to have their case heard.”).
73
See Alexandra Sadinsky, Redefining En Banc Review in the Federal Courts of Appeals, 82
FORDHAM L. REV. 2001, 2029 (2014).
74
See id.; Turley, Supreme Court, supra note 60.
75
See Turley, Supreme Court, supra note 60.
76
See Sadinsky, supra note 73, at 2004 (stating the term “en banc” means that a case is heard by
a full bench of judges).
2018] Reformation of the Supreme Court 9
Overall, the size of the court is not set in stone.77
77
See Hessick & Jordan, supra note 59, at 645 (noting that the change in size is not necessarily
always for the right reason).
78
See generally Eric Hamilton, Politicizing the Supreme Court, 65 STAN. L. REV. ONLINE 35 (2012)
(illustrating the importance of keeping the Supreme Court insulated from the politics of
Congress and the President).
79
See PATRICIA MOY & MICHAEL PFAU, WITH MALICE TOWARDS ALL? THE MEDIA AND PUBLIC
CONFIDENCE IN DEMOCRATIC INSTITUTIONS 17 (2000); Adam Edelman, More Americans Trust
Judges Judy and Joe Brown than Any Supreme Court Justice: Survey, N.Y. DAILY NEWS (May 7,
2013, 6:58 PM), https://perma.cc/6ZS7-94GM.
80
See Above the Law, Stat of the Week: Public Confidence in SCOTUS at Historic Low (Feb. 19,
2016, 5:21 PM), https://perma.cc/GHT6-QQF7; See generally Hamilton, supra note 78.
81
See Eric Posner, The Supreme Court’s Loss of Prestige, SLATE (Oct. 7, 2015, 5:04 PM),
https://perma.cc/HW3A-Z2QF (noting unpopular decisions such as Citizens United v. FEC, 558
U.S. 310 (2010), and the string of 5–4 decisions that consistently arise).
82
See Robinson, supra note 69, at 204 (illustrating how the Court is perceived as an extension of
existing political parties); David Paul Kuhn, The Incredible Polarization and Politicization of the
Supreme Court, THE ATLANTIC (June 29, 2012), https://perma.cc/47JL-HTM3.
83
See Hamilton, supra note 78.
84
See Joel K. Goldstein, Choosing Justices: How Presidents Decide, 26 J. L. & POL. 425, 449 (2011).
85
Id.
86
See id. at 449 n.89 (noting President Nixon offered the South an opportunity for his Court to
remedy the liberal decisions that came out of the Warren Court).
10 New England Law Review [Vol. 52 | 3
arena by the other branches. 87 One of the most infamous public attacks on
the Supreme Court is that of President Franklin D. Roosevelt when he
instituted his court-packing plan.88 During one of his “Fireside Chats,” 89
President Roosevelt said:
We have . . . reached the point as a Nation where we must take
action to save the Constitution from the Court and the Court
from itself. We must find a way to take an appeal from the
Supreme Court to the Constitution itself. We want a Supreme
Court that will do justice under the Constitution—not over it.90
87
See Barry P. McDonald, Supreme Court Justices: Are They Supposed to be Politicians in Black
Robes?, CNN (Oct. 27, 2016, 5:49 PM), https://perma.cc/G9K4-WLTT (discussing the
presidential candidates’ opinions on where they believed the Supreme Court should stand in
shaping policy).
88
See Bethany Blackstone & Greg Goelzhauser, Presidential Rhetoric Toward the Supreme Court,
97 JUDICATURE 179, 182 (2013).
89
See AMOS KIEWE, FDR’S FIRST FIRESIDE CHAT: PUBLIC CONFIDENCE IN THE BANKING CRISIS 20
(2007).
90
Blackstone & Goelzhauser, supra note 88, at 182.
91
See Blackstone & Goelzhauser, supra note 88, at 182.
92
See Richard A. Arenberg, Will Partisan Politics Infect the Supreme Court?, THE HILL (July 14,
2016, 1:37 PM), https://perma.cc/95KE-4KRS (during President Donald Trump’s campaign, he
suggested that Republican senators should delay any Supreme Court Justice nomination by
President Obama, following the death of Justice Scalia).
93
See Norman Dorsen, Senator Eastland’s Attack on The United States Supreme Court: An Analysis
and Response, 111 U. PA. L. REV. 693 (1963).
94
See Stephen B. Bright, Political Attack on the Judiciary: Can Justice Be Done Amid Efforts to
Intimidate and Remove Judges from Office for Unpopular Decision?, 72 N.Y.U. L. REV. 308 (1997).
95
See Lipton, supra note 42.
96
Eric Black, Something Changed: Picking a Supreme Court Justice is Now a Partisan Battle, MINN.
POST (Nov. 26, 2012), https://perma.cc/X3KH-9JJ6.
2018] Reformation of the Supreme Court 11
ANALYSIS
97
See MOY & PFAU, supra note 79.
98
See Lyle Denniston, The Three Cases Stymied By a Supreme Court Vacancy, NAT’L CONST. CTR.
(Oct. 24, 2016), https://perma.cc/4BMB-GJ39 (noting three cases as unscheduled for hearing:
Trinity Lutheran Church of Columbia, Inc. v. Pauley, 138 S. Ct. 891 (2016); Microsoft v. Baker,
138 S. Ct. 890 (2016); Murr v. Wisconsin, 136 S. Ct. 890 (2016)).
99
See Posner, supra note 81.
100
Gloucester City Sch. Bd. v. G. G., No. 16-273, 2017 WL 855755, *1 (Mar. 6, 2017); See
Lawrence Hurley, U.S. High Court Action Leaves Transgender Students in Legal Limbo, REUTERS
(Mar. 6, 2017, 5:00 PM), https://perma.cc/B5T5-943L.
101
See Kenneth W. Moffett, et. al., The Supreme Court is Taking Far Fewer Cases Than Usual.
Here’s Why, WASH. POST (June 2, 2016 2:00 PM EDT), https://perma.cc/3CHP-NWU2.
102
See Posner, supra note 81.
103
See Adam Liptak & Matt Flegenheimer, Neil Gorsuch Confirmed by Senate as Supreme Court
Justice, N.Y. TIMES (Apr. 7, 2017), https://perma.cc/G8DC-WT44; Hurley, supra note 100.
104
Kuhn, supra note 82 (illustrating the public’s frustration with a very important issue being
decided by one Justice’s vote).
105
See Robert E. Riggs, When Every Vote Counts: 5–4 Decisions in the United States Supreme Court,
1900–90, 21 HOFSTRA L. REV. 667, 667–68 (Spring 1993); Kuhn, supra note 82 (noting the 5–4
decision on the Affordable Care Act, which ensured all Americans had access to health care).
12 New England Law Review [Vol. 52 | 3
vote.106 The concept of the swing vote creates a theory that there are two
competing sides of the Court—conservative and liberal.107 Chief Justice
Roberts again noted, “the Court is ripe for a similar refocus on functioning
as an institution, because if it doesn’t, it’s going to lose its credibility and
legitimacy as an institution.”108 Justice Felix Frankfurter worked endlessly
to get a unanimous decision in Brown v. Board of Education because the
Court—acting as one—would show a finality of the decision and leave no
room to question whether segregation of schools would stand. 109
Alternatively, the 5–4 decision in Bush v. Gore suggested politicization of
the Court’s decision, with votes essentially aligned by party, which invited
the public to doubt the ultimate opinion of the majority.110 After Bush, the
public viewed the Court as a group of nine people with far too much
power because the presidency came down to the ultimate decision of one
person.111 Dissent and discussion is important to the Court’s rulings;
however, the constant string of decisions that are separated by one vote
leaves people questioning if Justices’ decisions are based on politics and
personal opinion or the law.112 The lack of confidence in the Court’s
decisions, gridlock, and animosity involved in Justice appointments has
hindered the Court’s function and purpose.113
The Court’s legitimacy is affected not only by its 5–4 decisions but also
by contentious criticism from other branches of government. 114 Senator Ted
Cruz publicly stated, “[w]e have an out of control Court . . . if I’m elected
president, every single Supreme Court Justice will faithfully follow the law
and will not act like philosopher kings.” 115 This is an indication to the
public that the Court has become dysfunctional and does not have a proper
place in the American democracy.116 This is a dangerous path to pursue as
the Supreme Court was meant to serve as a check and balance on the other
106
See Kuhn, supra note 82.
107
See Riggs, supra note 105, at 669.
108
Kuhn, supra note 82.
109
See Supreme Court Sows Distrust With Justices’ Political Activity, BOS. GLOBE (June 11, 2012
12:00AM), https://perma.cc/Z8D5-N2E2.
110
See Dahlia Lithwick, No More Bush v. Gore, SLATE (Oct. 25, 2016, 1:21 PM),
https://perma.cc/6YG3-J6UU.
111
See Ten Years After Bush v. Gore, What’s Changed?, NPR (Dec. 12, 2010, 8:00 AM ET),
https://perma.cc/T6FW-L48T (“What made the Bush v. Gore decision so controversial is that
you had a group of nominally conservative justices who nominally believe in states’ rights,
who nominally believe in judicial restraint, jumping into a state election contest for the first
time in American history and essentially shutting it down.”).
112
See Kuhn, supra note 82.
113
See generally Hamilton, supra note 78, at 35; Denniston, supra note 98.
114
See Brian Christopher Jones, Disparaging the Supreme Court, Part II: Questioning Institutional
Legitimacy, 2016 WIS. L. REV. 239, 253–54 (2016).
115
Id. at 254.
116
See id. at 253.
2018] Reformation of the Supreme Court 13
branches of government in an effort to prevent tyranny. 117 Although
questioning government institutions is an important part of a democracy,
the questioning has moved from criticism of a specific line of analysis
within a decision toward thwarting the purpose and function of the Court
as a whole.118
Another factor that has eroded the legitimacy of the Court is the
defeating remarks from the Justices themselves. 119 In 1935, during the Gold
Clause Cases,120 Justice James Clark McReynolds was so inflamed after
disagreeing with the majority that he stated, “this is Nero at his worst. The
Constitution as we know it is gone!” 121 Similarly, Justice Antonin Scalia, in
his dissent in King v. Burwell, said that the majority decision “will publish
forever the discouraging truth that the Supreme Court of the United States
favors some laws over others, and is prepared to do whatever it takes to
uphold and assist its favorites.”122 Such a dissent declares to the public that
the majority opinion is not legitimate. 123 This chips away at the public’s
confidence of the Court and its authority as final arbiter. 124 People may
assume that if a dissenting Justice can make such a remark in a decision,
then perhaps the decision is not binding. 125 Additionally, Justice Samuel
Alito was noted to have pursed his lips and rolled his eyes while Justice
Ginsburg read her dissent in Vance v. Ball State.126 Such conduct by Supreme
Court Justices is at least unprofessional, and at worst, whittles away at the
117
See, e.g., Alan M. Dershowitz, Checks and Balances Can Slow Trump, BOS. GLOBE (Feb. 22,
2017, 2:10 PM), https://perma.cc/4NS9-EMHP (noting the Supreme Court and other federal
courts hold power to strike down executive orders).
118
See Jones, supra note 114, at 252–53.
119
See Jones, supra note 114, at 250.
120
See generally United States v. Bankers Trust Co., 294 U.S. 240 (1935); Nortz v. United States,
249 U.S. 317 (1935); Perry v. United States, 249 U.S. 330 (1935).
121
MELVIN I. UROFSKY, DISSENT AND THE SUPREME COURT: ITS ROLE IN THE COURT’S HISTORY
AND THE NATION’S CONSTITUTIONAL DIALOGUE 13 (2015) (noting Justice McReynolds’
statement was so inflammatory that it was omitted from the opinion).
122
King v. Burwell, 135 S. Ct. 2480, 2507 (2015) (Scalia, J., dissenting); see Ryan Teague
Beckwith, The 7 Best Lines from Scalia’s Obamacare Dissent, TIME (June 25, 2015),
https://perma.cc/8JSC-MMGB.
123
See From Consensus to Collegiality: The Origin of the “Respectful” Dissent, 124 HARV. L. REV.
1305, 1325 (2011) (discussing how the assertive “I dissent” is a protest, while the decorum of “I
respectfully dissent” is used as a tool to further discourse on a particular issue) [hereinafter
Respectful Dissent].
124
See id.
125
See id.
126
See Vance v. Ball State University, 133 S.Ct. 2434, 2455–66 (2013) (Ginsburg, J., dissenting);
Debra Cassens Weiss, Did Alito Roll His Eyes During Ginsburg Dissent?, A.B.A. J. (June 26, 2013,
10:40 AM), https://perma.cc/GK9F-ZPQN (discussing Justice Alito’s disrespectful conduct
during a State of the Union Address in which President Barack Obama discussed the Court’s
decision in Citizens United v. FEC).
14 New England Law Review [Vol. 52 | 3
respect the American public has for the judiciary.127
(1996).
156
See ABA Standing Committee, supra note 153, at 4.
157
See ABA Standing Committee, supra note 153, at 4–5.
158
See Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical
Ranking of Judicial Performance, 78 S. CAL. L. REV. 23, 35 (2004) (“Under the ABA process, a
group of elite and supposedly nonpartisan lawyers conduct a highly rigorous inquiry into the
candidate’s background.”).
159
See Erwin Chemerinsky, Ideology and the Selection of Federal Judges, 36 U.C. DAVIS L. REV. 619,
622 (2002) (discussing different models for evaluating judicial nominations that would aid in
selecting the best legal minds for the Court).
160
See Rutkus, supra note 39.
161
See Turley, Supreme Court, supra note 60.
162
See Turley, Supreme Court, supra note 60 (noting Justices Sandra Day O’Connor, David
Souter, Clarence Thomas, and Elena Kagan were not well known judges upon their
nominations).
163
See Turley, Supreme Court, supra note 60.
164
See Turley, Supreme Court, supra note 60.
165
See Ludmilla Saveleiff, Hyper-Partisanship’s Impact on the Supreme Court Nomination and
Confirmation Process, 10 GEO. J.L. & PUB. POL’Y 563, 586 (2012) (noting President Bill Clinton
discussed Justice Ginsburg’s nomination with Senator Orrin Hatch, prior to the hearing,
18 New England Law Review [Vol. 52 | 3
2. Limiting the Influence of Special Interest Groups in the
Supreme Court Justice Confirmation Process Would
Lessen Political Rhetoric
which help set an amicable tone for the duration of the process).
166
See supra Part III(B).
167
See William G. Myers, III, The Role of Special Interest Groups in the Supreme Court Nomination
of Robert Bork, 17 HASTINGS CONST. L.Q. 399, 418 (1990) (noting a task force was created by
former New York Senator Hugh Carey to make recommendations that would help limit
special interest group influence in Supreme Court Justice confirmations).
168
See Joseph Faria & David Markey, Supreme Court Appointments After Thomas Nomination:
Reforming the Confirmation Process, 7 ST. JOHN’S J. CIV. RTS. & ECON. DEV. 389, 408–09 (1991).
169
See DAVIS, ELECTING JUSTICE, supra note 15, at 31; Tom Shales, At the Senate Hearings, More of
the Mortifying Spectacle, WASH. POST (Oct. 14, 1991), https://perma.cc/K99A-CXNE.
170
See DAVIS, ELECTING JUSTICE, supra note 15, at 31; Faria & Markey, supra note 168, at 409
(“The American people exercise control over the process directly, first by pressuring elected
officials preemptively, through letter-writing and other campaigns, and second by acting
retributively at the ballot box.”).
171
See James Huffman, Supreme Court Politics, HOOVER INST. (Apr. 7, 2016),
https://perma.cc/9LEY-N6EB (“Unless and until our courts can find a way to restore the rule
of law to their own work, we can expect that a politicized confirmation process will long
survive the tenure of Chief Justice Roberts and the other sitting members of the Supreme
Court.”); Nina Totenberg, Senate Democrats in Political Quagmire Over Supreme Court
Nomination, NPR (Feb. 2, 2017, 4:56 AM ET), https://perma.cc/P9N3-H73E.
2018] Reformation of the Supreme Court 19
intended is to enact term limits.172 Supreme Court Justices are living longer
than ever before with the average tenure of twenty-eight years on the
bench.173 Due to advances in medicine and technology, life spans are much
longer than when the Framers wrote the Constitution. 174 Many agree that
placing a term limit on Supreme Court Justices would decrease “the
temperature on confirmation battles by making the stakes a bit lower.” 175
Establishing a term limit would make the confirmation process less
contentious because one party would not feel that it was stuck with a
Justice opposed to its ideology for the next three decades. 176 Staggered term
limits of eighteen years would allow a President to fill two Court vacancies
per term with no possibility of reappointment. 177 Establishing term limits
for members of the Court would result in the tenure of an average Justice
being over fourteen years—closer to the average tenure of a Justice
between 1789 and 1970.178 By creating term limits for Supreme Court
Justices, the legislative and executive branches may be less inclined to place
all their political capital on a fight for a particular candidate, knowing
another spot on the bench would be vacant in the near future. 179 Removing
the possibility of reappointment affords the judiciary insulation from the
political forces that are rampant in elections.180
Senators were meant to assert the will of the people during the
confirmation process; however, the process has become ineffective due to
the slow turnover of Court vacancies. 181 If a limit of staggered eighteen-
172
See Christopher Ingraham, Why It’s Time to Get Serious About Supreme Court Term Limits,
WASH. POST (Feb. 13, 2016 8:47 PM EST), https://perma.cc/DUT9-CLQU (“‘The Constitution
was written at a time when life tenure meant living into your 50s because that’s what life
expectancy was.’”).
173
Bruce Moyer, Term Limits for the Justices?, 62 FED. LAW. 6, 9 (2015).
174
See Adrienne LaFrance, Down With Lifetime Appointments, SLATE (Nov. 12, 2013, 7:15 AM),
https://perma.cc/R6G5-86SN.
175
Ingraham, supra note 172.
176
See Jamal Greene, A Fixed Term Would Lower the Heat, N.Y. TIMES (Mar. 19, 2016, 12:18 PM),
https://perma.cc/CCN2-2833.
177
Calabresi & Lindgren, supra note 54, at 813 (2005); Greene, supra note 176.
178
See Calabresi & Lindgren, supra note 54, at 775 (2005) (noting the average tenure between
1970 and 2005 was twenty-six years on the bench).
179
See Jonathan H. Adler, A Question About Placing Term Limits on Supreme Court Justices,
WASH. POST (Feb. 16, 2016 8:10 PM EST), https://perma.cc/4M4E-JVTX.
180
See Calabresi & Lindgren, supra note 54, at 876.
181
See Calabresi & Lindgren, supra note 54, at 811 (“Although turnover occurred regularly
from 1789 through 1970, since 1970 Justices have stayed on the Court for longer than ever
before, and the democratic instillation of public values on the Court through the selection of
new judges has been correspondingly infrequent and irregular.”).
20 New England Law Review [Vol. 52 | 3
year terms were established, then regular turnover would allow a variety
of Justices to sit on the Court.182 Currently, vacancies occur infrequently
and often in multiples, allowing one party to pack the Court with Justices
of their choosing.183 In part because of the lack of term limits, many people
believe the Court is out of touch with the American public.184
The Court has shown that it struggles with cases regarding new
technology and other innovative issues.185 In one case before the Court,
Justice Roberts “insinuated that police might reasonably suspect a person
who carries two cellphones of being a drug dealer.” 186 However, it is clear
that Justice Roberts was unaware that many people carry two cellphones,
including “a large portion of the DC political class . . . including many of
his law clerks.”187 Justice Alito also criticized Justice Scalia for using
eighteenth century law in a case regarding GPS tracking devices. 188 Term
limits would allow for more turnover to permit younger Justices to
determine these cases that involve modern technology and modern
issues.189
C. Expanding the Size of the Supreme Court Would Allow for Fuller
and More Comprehensive Opinions
One of the main concerns about the Supreme Court is that there is a
large amount of power concentrated in the hands of a few people. 190 The
number of Justices on the Court used to comport with the number of
federal circuit courts, but the Court’s size was fixed at nine without much
debate or consideration of the pros and cons of such a number. 191 Adding
more members to the Court would increase the Court’s ability to share
differing opinions due to having a larger group assembled. 192 Also,
spreading the decision-making power throughout a larger group of
individuals prevents the ill-advised concentration of power amid the
182
See Calabresi & Lindgren, supra note 54, at 834.
183
See Calabresi & Lindgren, supra note 54, at 811; Pollack, supra note 7.
184
See Robinson, supra note 69, at 198; Carrie Johnson, Is it Time to Reconsider Lifetime
Appointments to the Supreme Court?, NPR (Feb. 17, 2016, 6:00 AM), https://perma.cc/TEG2-
ER8G.
185
See Trevor Timm, Technology Law Will Soon Be Reshaped by People Who Don’t Use Email, THE
GUARDIAN (May 3, 2014, 7:30 AM), https://perma.cc/V5WM-LTZ7.
186
Id.
187
Id.
188
Timm, supra note 185; see United States v. Jones, 132 S. Ct. 945, 956–57 (2012) (Alito, J.,
concurring).
189
See Calabresi & Lindgren, supra note 54, at 832; Johnson, supra note 184.
190
See Turley, Supreme Court, supra note 60.
191
See Tracy E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts
of Appeals Image, 58 DUKE L.J. 1439, 1456 (2009).
192
See id. at 1473.
2018] Reformation of the Supreme Court 21
few.193
In Bush v. Gore, many people began examining the size of the Court as
the presidency came down to the decision of five people. 194 It started the
conversation because “one of the most disturbing aspects of the case was
not simply that some Justices appeared to depart from prior legal views
but that the court insisted that its opinion could not be used as precedent
and was ‘limited to the present circumstances.’” 195 Therefore, the Justices
only wanted their reasoning to be used to choose the next President. 196 A
nineteen member Court would allow for additional opinions and differing
points of view to make Court decisions more comprehensive. 197 A larger
Court could help dispel the suggestion of political entanglement. 198 The
United States is composed of people from all walks of life, and having a
diverse assortment of Justices would be beneficial for the varying cases that
come before it.199 One example of a larger court size being beneficial is
when the federal appellate courts hear a case en banc. 200 Federal appellate
courts allow all of the sitting judges within the circuit to hear a case that is
of great importance en banc.201 This is because the appellate courts believe
cases with complex issues or those with higher importance deserve the
involvement and opinion of other judges. 202 The courts also believe that “en
banc rehearings allow more complete consideration (since more judges are
present) and provides perspective not available to the panel.”203 Therefore,
it would be prudent to have a larger number of Justices hearing cases at the
highest court in the United States.204
If there were nineteen Justices sitting on the Supreme Court, there
would be an increased chance that one member would raise a point or
argument that the others did not think of, creating more dialogue and
better written decisions. 205 Also, the larger the group within the Court, the
193
See Turley, Supreme Court, supra note 60.
194
Bush v. Gore, 531 U.S. 98, 109 (2000).
195
Id.; Jonathan Turley, The Fate of Health Care Shouldn’t Come Down to 9 Justices. Try 19., WASH.
POST (June 22, 2012), https://perma.cc/2RUC-Y38Y [hereinafter Turley, 9 Justices].
196
Turley, 9 Justices, supra note 195.
197
See Turley, Supreme Court, supra note 60.
198
See Robinson, supra note 69, at 207 (noting the impact that the size of the Indian Supreme
Court has on its legal system).
199
See Hessick & Jordan, supra note 59, at 678 (noting that having a more diverse Court may
make its decisions more legitimate to a larger set of people).
200
See Sadinsky, supra note 73.
201
See Sadinsky, supra note 73, at 2030; Turley, Supreme Court, supra note 60.
202
See Turley, Supreme Court, supra note 60.
203
Sadinsky, supra note 73, at 2030 (noting having more judges available to review the case is
beneficial because it allows for more discussion and analysis for the decision).
204
See Sadinsky, supra note 73, at 2030.
205
See Hessick & Jordan, supra note 59, at 681 (“The presence of a devil’s advocate forces a
group to test assumptions and can generally reduce the incidence of deliberative failures like
22 New England Law Review [Vol. 52 | 3
less influence one Justice has on a decision. 206 Although some countries
have a number of members that would be unwieldy (Spain has 74 and
France has 124), nineteen provides enough members for diversity, but not
so many that it would hinder discussion.207
CONCLUSION