Supreme Court appointments frequently draw attention due to the long-standing concern over Presidents and Congresses attempting to control the courts, and thus restrict future Congresses, Presidents, and even State law. Judicial bias remains unavoidable, with a great many rulings on any issue falling within the Constitution yet a span among them of philosophies and considerations about whom such decisions impact.
The problems of regulating a government are unsolvable; we can only diminish them. James Madison warned at length against the tyranny of the majority, and wrote on the subject:
Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.
Such controls as the three-quarters approval Constitutional Amendment requirement and the Senate’s three-fifths cloture requirements have protected our Nation by rendering a weak majority unable to carry into effect schemes of oppression; yet the Congress has also weakened them. We must restore the three-fifths requirement to approve Judges and Justices; and we must further control the threats to our democracy from all parties.
Protecting the Supreme Court
A three-fifths approval to approve Justices will not itself adequately protect the Supreme Court of the United States from agenda-driven appointments and court packing. We must go further to render each President capable of containing the last’s Court while also preventing the President and Congress from controlling the Courts.
As Congress has the Constitutional authority to create the Court, we can create a Court sized and maintained within these needs. A size of nine Justices seems sufficient; and the Court has expanded as far as eighteen in its life, so larger is not unreasonable. Both at once, however, provides a key control.
We propose the Court retain its regular docket of nine Justices, plus an additional, up to six, for each sitting Justice having reached the age of seventy years and six months. Furthermore, only the President’s first two appointments in each term may fill these additional seats.
In short: the President may fill an undersized court to nine Justices with all the expedience of today’s process; and, should the President’s first appointments begin under a court with more than seven sitting justices, the President may appoint one if not two Justices beyond those nine, but only such that the total number of Justices minus those of age seventy years and six months not exceed nine.
These rules would tend to give each President no more than two appointment, and frequently no fewer. The greatest power to manipulate the structure of the Court then falls to the Justices themselves, who may deny the President an appointment opportunity by retiring; yet by doing so, the Justices remove themselves from the Court, shifting its balance against their own political ideals as well and rendering this method impractical.
In this way, each President would be likely to have only two Supreme Court appointments, and would be likely to actually have two Supreme Court appointments due to the nature of these appointments spreading the ages.