Picking the Top Supremes … and How Many There Are

By 
Richard Shugrue
The Daily Record

Did you vote for the greatest justice of them all in the SCOTUSblog version of March Madness, which just picked Earl Warren for the top honors?

The first-ever competition excluded sitting jurists and admittedly omitted some renowned justices, but it did a good job in drawing the brackets. The semifinals pitted Warren against Louis Brandeis as well as John Marshall against Antonin Scalia. It was Marshall against Warren at the end.

The new editor of SCOTUSblog, James Romoser, drew on such matters as scholarly writing, the number of landmark decisions authored, and the precedent-altering rulings, to include names in the brackets. When the contest began, such justices as Oliver Wendell Holmes, Joseph Story, Sandra Day O’Connor, Felix Frankfurter and William Brennan were vying for the honors.

Any reader of the highly regarded publication could vote, and the editor was glad to take all comments and gripes, especially about who was left out of the “greatest” contest.

• • •

The 36 individuals chosen for the Biden Supreme Court Commission to study whether to alter America’s top court does not include any professors or lawyers from Nebraska. The body has no power, except of persuasion, and might decide that the current number of justices (nine) is just fine or that it should rise to 13.

It may suggest that the life tenure of the judges should be sliced to 18 years, or that active duty should end at age 75, or 85, or 65!

Chances are that “packing the court” by raising the number is going nowhere. President Joe Biden and House Speaker Nancy Pelosi both reject this reform, which is being advanced by some progressive members of Congress.

A Democratic president hasn’t picked a chief justice since Harry Truman selected Fred Vinson in 1946. Today’s Democrats fume because the GOP under President Donald Trump and Senate Majority Leader Mitch McConnell held Scalia’s seat open for a year during the Obama presidency and “steamrolled” the nomination of Amy Coney Barrett through during the last days of the Trump administration, resulting in today’s 6-3 split in favor of conservative justices.

Any number of writers have suggested methods by which a new president could name a single justice routinely and they would replace an aging judge who reaches a given age. Older members would still be on the payroll and could act as, e.g., retired Justice David Souter does, hearing lower court cases.

My guess is that the Biden Commission is going nowhere and, at best, will result in some law review articles and scholarly workshops at law schools. (See, e.g., The Harvard Law Federalist symposium on the merit of major changes to the Supreme Court, April 21).

The way to alter the shape and direction of the Supremes is to get out the vote and win elections.

While it may seem like a good idea to “term limit” justices by age, the older I get, I believe that individuals can decide that for themselves, depending on the need for a regular afternoon nap.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

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