Greg Greene: Absolutely, and let me tout my less-radical-than-it-seems suggestion of what to do about SCOTUS: sortition. Only the role of the chief justice is constitutionally enshrined. Write a Judiciary Act prescribing that the other seats get filled by a yearly random draw from the courts of appeals.

Absolutely, and let me tout my less-radical-than-it-seems suggestion of what to do about SCOTUS: sortition. Only the role of the chief justice is constitutionally enshrined. Write a Judiciary Act prescribing that the other seats get filled by a yearly random draw from the courts of appeals.

i mentioned this before but the last week or two has fully clarified that the rest of our lives is a drag-out fight against the supreme court that starts with priming the public to enthusiastically support — or at the very least resist decorum-based media calls against — completely rebuilding it

Make it impossible, in other words, for axe-grinding litigants to know who would hear their union-busting/Black-voter suppressing case du jour — or for the Harlan Crows of the world to know where to send their bribes.

In its early days as an institution, the Supreme Court’s justices used to ride circuit – presiding over cases in assigned states or regions. Sortition would invert this practice — assigning Senate-confirmed judges to one-year stints serving on the nation’s federal court of final appeal.

Because the structure of the Supreme Court isn't defined in constitutional text — only the role of chief justice is — Congress can write language redefining its membership. As this article argues, it departs from legislative precedents to say that change can happen only once all seats fall vacant:

Judicial sortition helps Congress and the Supreme Court - LegBranchwww.legbranch.org There are different ways to win a debate. One of the most common techniques in politics is to make a straw man argument. Straw man arguments are prevalent in political debates because they refute oppo...

Early Supreme Court Justices Ride the Circuit (U.S. National Park Service)www.nps.gov The early Justices of the U.S. Supreme Court also served as Circuit Court judges, and endured hardships as circuit riders.

The combination of life tenure for associate justices and Senate partisanship creates a corruptible, effectively immovable set of petty tyrants at the heart of our constitutional structure. As the Roberts court’s attacks on the Constitution show, we must no longer trust the justices with such power.

Again: perhaps it would serve these United States better if its system of government trusted no one, not even jurists possessed of impeccable character, with absolute power.

Put that RV to use!

Terms end in September, so that they're largely making cert decisions for their successors and not themselves?

Yep! You’re following me — essentially remove the ability of entrenched ideologues to shape their own docket, by ending their entrenchment.

I'm intrigued by this idea (and definitely agree with the need to think out-of-the-box), but I'm still stuck on two questions: first, what precedent is there for legislating the current justices out of their seats w/o abolishing the Court (which Congress can do for lower courts, but not SCOTUS); /1

and second, can the Art 3 req of "one Supreme Court" be satisfied without assigned judges? Congress can't create 1 SCt for the east and 1 for the west (that's not "one"), and probably couldn't specify that every case would be heard by a different random panel of 3 CJs. Is this distinguishable? /x

(There's certainly precedent for courts without judgeships in the lower courts - historically, the original circuit courts and in modern times, FISA. But would the Supreme Court say the Supreme Court is different?)

* FISC, not FISA. And FISCR for good measure. :)

Glad you asked! I would say this: those justices have life tenure, and should retain it — through membership in the pool of appellate judges eligible for the draw. (They can otherwise ride circuit, as their predecessors once did.)

I think I agree with this in principle (it's an element of the statutory term limit proposals as well), but I do think we have to grant it's unprecedented. Assigning an additional duty to a justice seems distinguishable from removing their ability to sit on cases indisputably in "their" "Court."

did not know this

It's an interesting idea. Probably not workable for district court judges, but would the workload/workflow of appellate court judges present any similar issues?

There’s nothing in the Constitution that says the Chief Justice is chosen by the President, or continues in office as such throughout the appointment. So in court expansion, just appoint a new Chief Justice and watch John Roberts stew or (better yet!) boycott the Court.

How much has the practice of honoring blue slips stacked the lower courts?

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