Thread by @robertltsai

Reform of SCOTUS:
1. Always an even number of justices and no fewer than 8
2. 16-yr term limits
3. Congress allowed to establish other term limits for lower court judges
4. No nationwide injunctions by a single judge … @DemJournal bit.ly/3pGKnyT

5. No Act of Congress may be invalidated unless 3/4 of justices agree
6. If threshold met, Congress given 18 months in which to remedy through further legislation unless “manifestly” unconstitutional—in which immediate injunction may issue.

During deliberations, I pushed for 12-15 year term limits for federal judges though I lost. I think anything longer than 8 years—beyond a typical president’s tenure—is enough to insulate from politics. Much longer and the temptation to entrench party policies grows.

A combination of approaches is necessary to prevent jurisprudence from being too far out of alignment with a community’s preference as well as reducing the likelihood of destroying hard-won Congressional compromises via winning a single election and appointing some judges.

Federal judges would remain comparatively free to declare state and local laws unconstitutional and enjoin them.

Do these measures strike the right balance? I’m not sure. But some of us (myself included) didn’t want to mandate particular interpretive methodologies and were skeptical of rules that would be applied by judges themselves.

Some of us wanted to go further to reimagine the Judiciary. As I suggest in my essay, we should experiment with more popular checks on outrageous SCOTUS decisions. The goal should be to afford citizens “multiple methods of exercising power.” bit.ly/34Xznn9

History shows that dependence on judges as primary guardians of equality and liberty have failed. Instead, court-centered theories of rights have simply played into the hands of those interested in partisan entrenchment or oligarchy. We need to try new things.

* has *

A lot of smart people have been hard at work on judicial reform proposals. Consider their ideas and read their scholarship—much of which was discussed. @samuelmoyn @rddoerfler @danepps @FixTheCourt @CJSprigman @espinsegall

One more feature of the proposals: federal judges have to be confirmed by a supermajority of the House. This is part of a more complicated reform to reduce the ability of the Senate to blockade the people’s business. It may leave some seats unfilled as a matter of politics.

Another super-majority rule for the appointment of the AG. I’m not wild about supermajority requirements for appointment of either judges or the AG. I do like the procedural addition that inaction by the House within 90 days of appointment means automatic confirmation.

Anyway, Sandy Levinson says here that we wouldn’t get justices like ACB but if the same party holds the presidency and the House, they can get their nominee through despite the 2/3 rule just by sitting for 90 days on it.

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