Spin Me Right Round
- All courts should have an odd number of judges (3 for Inferior, 5 for Appellant, 7 for Supreme) and have those judges assigned randomly from pools for terms of 5 years.
- Judges should only be able to serve at a maximum for what amounts to 20 years in a full panel and another 5 as a temporary backup.
- States, Territories, and Local governments should be required to set up a court system similar to the Federal one with these new Amendments.
Now that we have removed you (you, personally) from having to go to Jury Duty, what do we require of our Judges to make this happen? First, we need to add some new Clauses to Article 3, Section 2 to describe what we expect from our “Panel of Judges” Jury:
By Amendment to the Constitution of the United States, Article 3, Section 2, Clause 4 shall be added:
The Panel of Judges acting as a Jury shall consist of an odd number of Judges. The lowest inferior courts shall consist of three Judges, the appeal courts shall consist of five Judges, and the Supreme Court shall consist of seven Judges.
Remember earlier that we noted that there is no reason for the number of judges in the Supreme Court or the Appellant Courts; they have all been decided on their own and can change over time. In 2019, some Democratic candidates have discussed increasing the size of the Supreme Court in order to staff it with judges they deem more palatable (assuming they could get the judges approved by the Senate). And why not, since this has been done in the past to get to the 9 members we have today? Here, though, we have simplified and solidified what should be expected of any level and eliminate much of that political interference. Instead, we break it down into a few easy levels:
- Whatever is the lowest “inferior” court (as the Constitution likes to call lower courts), would have a 3-judge panel. It is important to note that some courts are specialized to specific topics, so these would all fall into the “inferior” bucket.
- The middle appeals layer would consist of a 5-judge panel to expand the pool and even out decisions. While this does not particularly address how appeals work today, it does force going to a full appeals court instead of the intermediate appeals level before the full panel appeals that exists today.
- Finally, the Supreme Court would cap out at the 7-judge panel. This maximum would put in place the first of planned limitations to the Supreme Court to make it more impartial while also keeping the working group to a reasonable enough size.
But if we have these limiting sizes of the courts, how do we then create the impartialness as required by the Constitution?
By Amendment to the Constitution of the United States, Article 3, Section 2, Clause 5 shall be added:
All Judges shall be in a common Pool by area of the court or by type of court as determined by Congress. Each Panel of Judges shall be filled from these Pools; shall share cases except when a substitute is needed due to a conflict of interest, movement to a different Pool, personal leave, death, retirement, or any other reason determined by Congress; and shall serve for a term of five years. Assignment from the Pool to a Panel shall be at random in a method determined by the President. The Pool must consist of more Judges than necessary to fill Panels in order to have Judges in reserve in case a substitution is necessary. At the end of a five-year term, Judges are to return to the Pool for re-assignment or moved to another Pool and may not again serve in the same physical or specialized area.
This one is quite dense, so let us break it down.
First and foremost is the new concept of a “pool” of judges. Think of it this way: perhaps there are 15 “inferior” courts that would require 3 judges each. In total, that would mean we would need 45 judges. We should then have a pool of, say, 50 judges available so that we can assign the 45 judges we need and keep 5 in arrears when a substitution is needed. A substitution may be needed because there may be some type of conflict of interest or the judge had to leave for whatever reason (illness, vacation, death), or any other reason. Those other reasons would be determined by Congress as the check, but the idea is that a substitute should be able to be pulled in when necessary so that there is always a full panel. Currently in the appeals and Supreme courts, when a judge recuses themselves there is no one to replace them, and this can end up with an even number and a tie vote.
Now where this gets particularly interesting is how judges are assigned to a panel. The panels would serve for 5 years at a time and each judge would be assigned based upon a random method as determined by the President. If we go backwards, the President recommends to Congress a judge for a particular court (inferior, appeals, Supreme, etcetera) and Congress either approves or disapproves of the judge. Today, Congress approves the judge not only directly to a court, but often to a specific post in a court. Instead, here, Congress would be approving a judge to serve in a pool of judges that are available for a specific court. Congress already can create any inferior court it deems necessary and has done so. For instance, there is a court that focusses solely on bankruptcy, another on patents, and others that are just general concerns. These would be the various pools for each type of inferior, appeals, and Supreme Court created (the latter being only one, but worth noting as its own pool).
The judge would serve a 5-year term with the rest of their team; or if not assigned, be a substitute for other teams when necessary. At the end of five years, those on a panel would return to the pool for random re-assignment — assuming they are still eligible. A judge may reach retirement because we have already limited time served in government for any combination of elected or appointed position at any level of government to 25 years. That means if someone was a State judge for 10 years, they could only serve an additional 15 years in the Federal court system. Or similarly, if someone served in Congress or was in the Cabinet for 8 years, they would have a limited amount of time available to them to serve in the courts. This would be helpful to reduce cronyism and payoff jobs. It would not alone eliminate these situations but would be beneficial in at least making sure there is a turnover when someone gets through the cracks.
Assuming the judge were available for re-assignment, they could not again serve in the same physical or specialized area. In the latter case, if a judge served in bankruptcy court, they could no longer serve on that same court and have to move on to somewhere else. If it is desired to make a judge an appeals or Supreme Court judge, once approved by Congress they might be moved into those pools. But if they are staying in their assigned pool and the pool is more general or part of appeals, they must then move to a different physical area. Between the randomness of assignments and being forced to move on to a different physical district, no court area could have a certain style to it that lawyers could use to game the process. Today, lawyers file their cases in specific districts that they feel are more open to their arguments. This would reduce that by having a complete re-shuffling every five years.
Meanwhile, due to the five-year shuffle and the general timeout of service, the courts would constantly be changing their makeup. No President nor Congress would be able to stack a court to their favor, especially the Supreme Court. Not only would the Supreme Court turn over every five years, it would also need to have a pool of judges available for substitutions on particular cases. Even if a President and Congress added many judges to the pools, eventually they would time out or another President/Congress combination would add additional judges and the randomness would purge most of the situations that would be of concern.
At the same time, there is a need to further limit how much and how long judges can serve, even beyond the timeout limit created earlier.
By Amendment to the Constitution of the United States, Article 3, Section 2, Clause 6 shall be added:
A Judge may only act as a permanent member of four Panels over the course of the Judge’s service.
If a judge never served anywhere else in any level of government, then they would be limited here to being assigned to 4 panels in total. Since each panel is 5 years long, that means a maximum of 20 years serving on a panel in total. In the remaining 5 years the judge could serve as a substitute — if they decided to stick around. And again, with the randomness, this judge could end up in 4 panels in a row or no panels ever or any combination in between. It is not something the judge should have control over, nor any other member of the government.
Between these conditions and the potential of having to move a family every 5 years, being a judge might be less appealing to many people. As a job of service, though, it is preferred to make a profession that is desirable by only the most dedicated. At the same time, all of this will force judges to not have the opportunity to get comfortable where they are and be prepared to change themselves and learn everything all over again — including working with different people.
All these changes amount to a redefinition of the court and jury system — but only at the Federal level. Most cases still at least start or take place at the local and State/Territory levels; and at those levels the rules may be quite different. As such, we must extend all these changes down to those levels in order to have an impact across all people and systems:
By Amendment to the Constitution of the United States, Article 3, Section 2, Clause 7 shall be added:
The States, Territories, and Local Governments shall have Court Systems set up in the same model as the Federal Court System as laid out in the Constitution and its Amendments. Any Amendment to the Judicial Branch at the Federal Level should be reflected at the State, Territory, and Local Level.
What this means is that all these changes for removing citizen jurors, ending Grand Juries, and creating pools for judges with turnover must also happen at the State, Territory, and local level. What it does not do is dictate how these non-Federal governments must set up their Judicial Branches but makes it clear that they should mimic the Federal system as laid out in the Constitution. It can then become a point of challenge if a State, for instance, is not following any of these rules and can be sued in Federal court to make that happens (once again with the Federal Courts making States write their own law). It is a guidance, but these lower governments could come up with their own language and address their own individual concerns.
With the Federal and Local courts in line, the question becomes: how do the courts enforce their powers over the other branches? And more so, how do the other branches hold power over the courts, keep them in check, and make sure the law is applied evenly, impartially, and to all?
TO BE CONTINUED…