I really appreciate the NY Times' dedication to scholarship. This series of six opinion articles contain several by professors who clerked for Scalia and Ginsburg. They do have that pesky firewall (my library gives us free subscriptions--five days at a time!)
One of the most interesting ideas involves the Constitutional Court. This could be created by Congress and would basically bypass the Supreme Court on constitutional issues. What a great idea!
See here:
The whole series is fascinating, and it's good to know about all the options a bipartisan commission on fixing the courts can study. See if your library might offer what mine does (after all, I live in a red-red state where the main newspaper once ignored MLK Day in favor of a huge tribute to Robert E. Lee and also called Tom Cotton, the most radical--and mean--Senator out there, a "moderate.")
One of the most interesting ideas involves the Constitutional Court. This could be created by Congress and would basically bypass the Supreme Court on constitutional issues. What a great idea!
See here:
The United States should join scores of other nations, including Germany and France, and create a specialized court to decide constitutional questions. The most contentious and important legal issues — whether states can ban abortion, or whether the president can refuse subpoenas or mandate travel bans — should be shifted from the Supreme Court to a new court created to decide such issues.
Creating a United States Constitutional Court is the big idea that has evaded Democrats looking for possible cures to the court’s politicization.
This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.
In contrast, a special constitutional court can be achieved by statute, adopted by Congress and signed into law by a new president. And it is unquestionably constitutional.
Congress is squarely within its authority to create a constitutional court, just as it has created the federal courts of appeals, the district courts and the United States Court of International Trade.
Congress also has control, as Article III of the Constitution makes clear, over the Supreme Court’s jurisdiction to review decisions of lower courts. Its appellate authority is subject to “such exceptions, and under such regulations as the Congress shall make.” Congress has taken advantage of this power a number of times in history, making major adjustments to the scope of the court’s appellate review as recently as 1988.
How would With few exceptions, the Supreme Court now hears only those cases it chooses. Most of those — about two out of three — turn on interpretations of federal statutes or regulations. Those sorts of cases would remain at the court. If the court gets them Congress can respond with new laws or regulations.
But the court’s constitutional mistakes cannot so easily be rectified. Nor can the taint of partisanship that now accompanies them. Congress can require the Supreme Court to refer cases it accepts that turn on constitutional questions to the constitutional court. This would mimic the main structural benefit of Supreme Court supremacy — establishing a national uniformity in matters of constitutional rights and authority.
The new court should have an even number of judges (eight is good), ensuring it would never rule with a bare majority. The court would be powerless to strike down a statute on constitutional grounds with a tie vote. When the constitutional court did reach a decision, Congress could limit the Supreme Court’s ability to hear an appeal unless a supermajority of justices, seven of nine, voted to hear it. (Now it takes only four votes to hear a case.)
Opinion | The Supreme Court Is Picking a Fight It Is Destined to Lose
The whole series is fascinating, and it's good to know about all the options a bipartisan commission on fixing the courts can study. See if your library might offer what mine does (after all, I live in a red-red state where the main newspaper once ignored MLK Day in favor of a huge tribute to Robert E. Lee and also called Tom Cotton, the most radical--and mean--Senator out there, a "moderate.")