With not much more than 24 hours to go until election returns start pouring in, I want to be sedated: With actual work to do, however, I thought I'd distract myself and readers of this blog from the election for a few moments to talk about an academic proposal of my emeritus Cornell colleague Roger Cramton and Duke Law Professor Paul Carrington. C&C made waves a few years ago when they argued (quite persuasively to my mind) that life tenure could be abolished for Supreme Court Justices without amending the Constitution. Article III, they noted, guarantees life tenure as an Article III judge, rather than in any particular judgeship. Thus, C&C proposed that each Justice serve for an 18-year term on the Supremes, followed by a period as a lower court federal judge and as a possible pinch-hitter for Supreme Court cases in which there are one or more recusals. Because already-serving Justices would be grandfathered (under one version of the proposal), neither political party would have a vested interest in opposing it. The proposal was provocative and creative. For a brief period, it even appeared that it might gain some political traction. But it appears to have stalled.
Meanwhile, the dynamic duo are back with a new proposal: Restore a good deal of the Supreme Court's mandatory appellate jurisdiction, but instead of using automatic rights of appeal (as pre-1988), strip the Justices of the power to decide what cases to hear and transfer that power to a new division of the Supreme Court made up of experienced federal appeals court judges. (C&C would also allow the Justices to add to the cases selected by the appeals court judges.) With the Supreme Court docket shrinking to record-low levels, the proposal would restore more "mundane" cases to the docket. Further, the appeals court judges would likely have a better sense of what circuit splits need resolving than the Justices or their law clerks. Currently, 7 Justices---all but Stevens and Alito---participate in a "cert pool," in which one law clerk writes a short memo for all 7 participating pool Justices. Because a law clerk is much more likely to be embarrassed by the Court taking a case it should have rejected (if, for example, it turns out that a jurisdictional issue prevents the Court from reaching the merits) than by rejecting a case it should have taken, law clerks have a strong incentive to urge the Court to deny review. The C&C proposal would presumably greatly reduce this effect.
Accordingly, I believe that the C&C proposal deserves to be taken seriously. Interestingly, however, C&C offer something else as their primary justification for the proposal (although they also include the argument described just above): They contend that it would rein in the tendency of the Supreme Court (and the emulating tendency of lower court judges) to act as a "super-legislature." C&C do not have a political axe to grind. They oppose what they regard as liberal judicial activism (e.g., Roe v. Wade) along with what they regard as conservative judicial activism (e.g., Bush v. Gore), and reserve some of their harshest (and in my view warranted) criticism for the Supreme Court cases that have relied on the First Amendment to turn judicial elections (in states that have them) into full-on political contests.
Judicial activism may or may not be a serious problem. (I tend to think that if it is a problem at all, it is a much less serious problem than other, more glaring undemocratic features of our
political system, such as disproportionate representation in the Senate and how difficult we make it to vote through our system of decentralized, under-funded elections even for national office.) But even if you think courts acting as super-legislatures is a serious problem, it's hard to see how the C&C proposal would solve it. During earlier periods of both conservative judicial activism (1890s through 1930s) and liberal judicial activism (mid-1950s through mid-1970s), the Court heard substantially more cases and had a much larger non-discretionary docket than it now does. As the response papers of 5th Circuit Judge Patrick Higgenbotham and UVA Law Professor Daniel Meador note---and I agree---there appears to be a substantial mismatch between the latest C&C proposal and the problem which its proponents hope to solve.
But perhaps Judge Higgenbotham, Professor Meador and I have missed the point somehow. Professors Carrington and Cramton are both canny fellows, and so there may be a more subtle mechanism at work here. We'll find out on Thursday, when I'll be moderating a panel on the C&C paper, featuring the authors and the two responders. Articles and responses will be published in the Cornell Law Review.
Posted by Mike Dorf