Cogito Ergo Non Serviam
Courts After Ginsburg Need to Change
Justice Ruth Bader Ginsburg died on Friday, and the mourning of her death as well as the cheering of her life has been done better by others than this journal could hope to do. She changed America, and with it the world. Yet she leaves behind a court system that is no longer fit for purpose. The litigiousness of American society aside, the federal courts need reform, and this election and upcoming presidential term offer the ideal moment to undertake a huge overhaul.
The Constitution establishes a Supreme Court and gives Congress the power to establish other courts as it may deem necessary. This is, of course, where reality and the belief in an apolitical judiciary start their clash. The courts are political. Always have been. Always will be. They are human insitutions, and they deal with the law. The idea that the courts would not be political is plain ridiculous. They cannot be anything but political. And the reforms, therefore, must take that into account.
Beginning with the Supreme Court, its members are appointed for life, which is preposterous. A person appointed to the top court in the country in one generation will have no real experience of life in the next generation. A political agency of any kind must have some kind of relationship between the people in it and the greater world beyond it. Elections serve that purpose for the legislative and executive. Elected judges might be an idea worth entertaining, but experience at the state level suggests otherwise. Far better to limit their time in office.
At the Circuit Courts of the US operate with a two-tier system. First, an appeal from the district courts is heard by a three-judge panel, and their decision can be appealed to the entire Circuit sitting en banc if the court believes the appeal to be worthwhile. This reduces the work load and allows the courts to dispense more cases quickly. The Supreme Court needs to operate this way. A fifteen-justice Supreme Court would have the numbers to effect this change.
As for the other courts, Congress needs to increase their numbers as well. No new district court has been created since Puerto Rico's in 1966, and there are 94 of them. There are 13 Circuit Courts above them. They vary in the number of judges from 6 to 29 and range in the populations they serve from a few hundred thousand to 61 million. It is not necessary that they have the exact same numbers, but a harmonization in both the number of judges and the populations served is in order.
Finally, there is the question of who gets to be a judge. Or to tinker with the old Roman adage, who decides who will decide? There need to be legally binding requirements on who can actually be a judge. It might be prudent to require all judges to hold a law degree if not a law license. They must know civil and criminal proceedure as appropriate to the cases they hear. There have been 109 Supreme Court Justices in US history. Research shows 41 of them had no prior judicial experience, including William Rehnquist, Felix Frankfurter, Earl Warren, and Louis Brandeis.
Actual experience on the bench is not necessary, one would therefore argue. Yet these men brought knowledge that is vital to success. Mr. Rehnquist was a lawyer in private practice before working in the Justice Department. Mr. Frankfurter founded the ACLU and taught law at Harvard. Mr. Warren had been Governor of California (so he was quite political). Louis Brandeis spent more than four decades in private practice fighting corporate power and trust busting.
Democrats Congress need to pass a Judiciary Reform Act next year. They need to do so with or without the support of the Republican Party. The obstreperous GOP cannot stand in the way of fixing a broken system.
© Copyright 2020 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
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