A Possible Solution to McConnell's Mess on the Court

Last week Jennifer Rubin clued me into an interesting clause in Article III, section 2 of the Constitution which might provide a quick and low key way to repair the damage to the Supreme Court.

A Possible Solution to McConnell's Mess on the Court

Jennifer Rubin of the Washington Post presented a good idea last week when she discussed using Congress to defang an out of control, ideologically extreme Supreme Court. But instead of simply limiting the Appellate power of the court, as was advocated, I would use the method she discussed to make the court more fair. So that instead of an ideologically extreme court, where questionable means had been used to stack the court with right-wing justices, we would have a court that was as fair as possible to all parties. And I think there would be great support for this is among the general public.

First of all, Article III, section 2 gives limited and articulated powers to the court, and it states that Congress has absolute authority over the court's appellate powers:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction ... with such exceptions, and under such regulations as the Congress shall make.”

Given the final provision in this section of the Constitution, i.e., “... with such exceptions, and under such regulations as the Congress shall make.”, a law could be passed that would deny the Supreme Court appellate jurisdiction over a lower court decision, unless the case was heard by a bank of justices consisting of all the minority court members, an equal number of majority members and with all other justices recusing themselves. And this bank of justices would then remain fixed for the remainder of the court term.

And if the bank of justices desired a tie breaking vote during the term, as determined by a vote among the members, then a justice from the lower appellate court could be chosen, by the consensus of the bank, to hear the case along with the bank of justices.

And in the event of a tie vote, the lower court justice would then recommend an outcome that would be adhered to, e.g., a tie vote with a ruling for the Defendants (or the Plaintiffs, as the case may be).

Court packing would be futile under this system, as the added justices would simply be idle if their number exceeded that of the minority members. Likewise, the theft of a seat, as was done with Merrick Garland, would have no effect as the members in excess of the number of minority members would again simply sit idle. And there would be more incentive to nominate wise and fair justices over hard political ideologues, as a hard political ideologue would have little power under this system, and might even be rarely selected to sit on the bank, while a wise and fair justice would often be welcome.

And the system requires no major changes to the court. Ingenious new systems have been proposed to make the court more fair, but most require term limits, Constitutional Amendments or removing and replacing justices appointed for life. And although these systems would solve many problems, the are simply too controversial and radical to implement. Here, a Federal Statute simply needs to be changed, which can be easily done if, as expected, the Democrats take the Senate majority and Presidency, and then find the nerve to do away with the filibuster.

If Amy Coney Barrett is confirmed, as expected, giving a six to three Republican majority on the court, then under the new law, the first bank of justices to hear appellate cases will been a six member bank, with three justices who were appointed by Democrats, and three Republican appointed justices.

And, as a safeguard against capricious or politically driven recommendations from the lower court justice selected to break tie votes, this position might be expanded to a panel of three or five, or even nine, lower court appellate judges who would vote to break ties in the upper court. More careful thought is needed here.

The job of the Supreme Court is to maintain the law and ensure fairness and justice. It's not to serve the political ends of a conniving political party at odds with the wishes of the majority of Americans. And this suggestion would go a long way in ensuring the court follows the proper path.