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rgbecker

(4,806 posts)
Mon Jul 4, 2022, 07:27 AM Jul 2022

Robert Hubbell has an idea for getting control of the Supreme Court.

[link:https://roberthubbell.substack.com/p/a-modest-proposal|

"Restrict the appellate jurisdiction of the Supreme Court to those cases in which the justices who participate in the review and disposition of the cases (a) have no conflict of interest and (b) sign and file affidavits affirming they have no conflicts of interest. If a justice with a conflict of interest recuses themselves, the Court can exercise appellate jurisdiction. "

" Fix the Court has compiled a list of recent conflicts, including the following:

Justice Scalia attended Koch Industries-backed retreat in Palm Springs in 2007, a time when Koch was bankrolling several litigants with cases before the Supreme Court;

Justice Scalia flew on a private plane to stay for free in a $700-per-night room at the ranch of a businessman whose company had a case before the Court the prior year (Scalia voted favorably for the company).

Justice Barrett refused to recuse herself from a case involving Americans for Prosperity, which spent more than $1 million to help get Barrett confirmed.

Justices Alito and Kavanaugh met at the Supreme Court with the head of the National Organization for Marriage when it was appearing before the Court to urge opposition to the inclusion of gay and lesbian workers under Title VII of the Civil Rights Act. Although the Court granted protections to gay and lesbian workers, Alito and Kavanaugh dissented.

Justice Gorsuch failed to recuse himself from a case involving Penguin Random House when Gorsuch had earned more than $650,000 from his book contract with Penguin Random House since becoming a justice.

It is debatable whether Congress can force Supreme Court justices to adopt an enforceable code of ethics. But the Constitution provides that Congress can restrict the appellate jurisdiction of the Court, as provided in Article III, Section 2:

[T]he Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress has restricted the Court’s appellate jurisdiction in the past, and justices of the Court have repeatedly recognized the right of Congress to do so. See Joshua Zeitz writing in Politico, Opinion | How the Founders Intended to Check the Supreme Court’s Power. "

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Robert Hubbell has an idea for getting control of the Supreme Court. (Original Post) rgbecker Jul 2022 OP
Long overdue Alice Kramden Jul 2022 #1
The problem is Congress. Lonestarblue Jul 2022 #5
Very important points Alice Kramden Jul 2022 #18
The DoJ could prosecute every GOP connected to Jan 6th NullTuples Jul 2022 #43
Win elections. NT mahatmakanejeeves Jul 2022 #2
Yes. A thousand times yes. DeeDeeNY Jul 2022 #8
.....and too many Republicans never fail to vote. jaxexpat Jul 2022 #27
Yees. As big as the '20 election was, 1/3 of eligible voters STILL didnt vote. oldsoftie Jul 2022 #39
Your advice does no good to fix current problem which stems from already-lost elections Silent3 Jul 2022 #29
It's the opposite Hav Jul 2022 #31
Voting actually will help the present situation DeeDeeNY Jul 2022 #32
Sounds good, but ignore reality zipplewrath Jul 2022 #37
I'm most interested in congress being able to restrict the court's jurisdiction Buckeyeblue Jul 2022 #3
I like it. BUT ---- 3Hotdogs Jul 2022 #4
Good questions. JudyM Jul 2022 #28
That's easy. We do it democratically. jaxexpat Jul 2022 #30
Wait - isn't that supposed to be a given? Novara Jul 2022 #6
Sounds like an oversight board would require wnylib Jul 2022 #10
Congress can do it Novara Jul 2022 #16
But what authority would be able to enforce it? wnylib Jul 2022 #19
The oversight board Novara Jul 2022 #22
Agree Joinfortmill Jul 2022 #15
Post removed Post removed Jul 2022 #7
Biden would disapprove of ethics rules for Justices? Mister Ed Jul 2022 #23
Congress should require the same of it's own members first MichMan Jul 2022 #9
All three branches of our government multigraincracker Jul 2022 #11
Exactly. And the grantees in the fine print as fucking us! mjvpi Jul 2022 #24
no more likely to get sufficient votes than adding justices onenote Jul 2022 #12
Thank you very much. Joinfortmill Jul 2022 #13
Do something Marthe48 Jul 2022 #14
Thelma and Louise won't let us peppertree Jul 2022 #20
Koch Industries needs to be shut down. AllaN01Bear Jul 2022 #17
Agreed Oldtimeralso Jul 2022 #40
Very interesting..and educational.. mountain grammy Jul 2022 #21
A bill worth advertising and promoting, at least empedocles Jul 2022 #25
Definitely interesting and educational! calimary Jul 2022 #36
Push this idea everywhere all the time. Very few cbabe Jul 2022 #26
Should happen. Will it? Martin68 Jul 2022 #33
Just thinking out loud here, Mr.Bill Jul 2022 #34
I don't forget clarence llashram Jul 2022 #35
No shit genxlib Jul 2022 #42
I see a pattern here RANDYWILDMAN Jul 2022 #38
Even if it could get through Congress wouldn't the SC just rule it "untraditional"? NullTuples Jul 2022 #41
How do we get this done? SleeplessinSoCal Jul 2022 #44
There is also a "break glass" scenario : Mike Niendorff Jul 2022 #45

Lonestarblue

(9,874 posts)
5. The problem is Congress.
Mon Jul 4, 2022, 07:45 AM
Jul 2022

Not enough Dems to accomplish such an overhaul. The entire federal court system needs an overhaul, which hasn’t happened in decades even though as our population has grown and people have shifted from one part of the country to another. The district courts should be balanced so they handle cases coming from roughly the same number of citizens. I suspect that many aren’t even close, which is why it can take five or more years for a case to make its way through the courts. That isn’t justice.

Once balanced for population, judges will most likely need to be added and we should have one Supreme for each federal district, so 13 justices.

NullTuples

(6,017 posts)
43. The DoJ could prosecute every GOP connected to Jan 6th
Mon Jul 4, 2022, 11:05 PM
Jul 2022

Given that 147 of them in Congress voted to overturn the vote, and there are plenty at various state levels who provided assistance, and that it's actually the right thing to do if we value justice and our democracy...there shouldn't even be a question as to whether it needs to be done.

But if it was done, Dems would regain control of Congress.

oldsoftie

(12,410 posts)
39. Yees. As big as the '20 election was, 1/3 of eligible voters STILL didnt vote.
Mon Jul 4, 2022, 05:20 PM
Jul 2022

Imagine if they all did. I'd bet more were Dems than not

Silent3

(15,018 posts)
29. Your advice does no good to fix current problem which stems from already-lost elections
Mon Jul 4, 2022, 11:49 AM
Jul 2022

Fixing the SCOTUS via nothing more than winning future elections, against the force of a current SCOTUS obviously willing to support all kinds of voter suppression, could take decades.

Your comment might make you feel good, but it is worthless for solving the current crisis.

Hav

(5,969 posts)
31. It's the opposite
Mon Jul 4, 2022, 12:05 PM
Jul 2022

That comment doesn't make one feel good at all, it's just the most realistic thing you can do. It's what the Repubs did.
There is nothing to feel good about that Trump's picks will be there for 3 more decades. But it is the result of an election after people were warned that this was going to happen. Some didn't want to listen and even ridiculed those that pointed to the SC. And now everybody has to live with the consequences.

In contrast, all this talk about expanding the SC, for instance, is feel good nonsense with no chance of solving current issues.

DeeDeeNY

(3,352 posts)
32. Voting actually will help the present situation
Mon Jul 4, 2022, 01:08 PM
Jul 2022

Bigger majorities in Congress can at least enable the codifying of abortion rights and many other rights into law. Not enough to completely repair this Court’s damage but still better than not doing anything.

zipplewrath

(16,646 posts)
37. Sounds good, but ignore reality
Mon Jul 4, 2022, 04:38 PM
Jul 2022

We can vote our asses off, but the reality is that McConnell is in his position because 30% of the population votes for him. 70% of the population lives in roughly 20 states. We live in a minority rule country, especially with respect to the SC. 5 million more votes in California won't change anything. And it's only gonna get worse. By 2040, 70% of the population will live in just 15 states.

Buckeyeblue

(5,491 posts)
3. I'm most interested in congress being able to restrict the court's jurisdiction
Mon Jul 4, 2022, 07:38 AM
Jul 2022

I wonder what that would look like. I also think we should make a bigger deal out of conflicts of interest.

3Hotdogs

(12,197 posts)
4. I like it. BUT ----
Mon Jul 4, 2022, 07:38 AM
Jul 2022

Does every justice sign for every case?

Who decides what is a conflict?

Who decided what is a violation of the signed document after the case is heard?

What is the penalty for a violation?

JudyM

(29,122 posts)
28. Good questions.
Mon Jul 4, 2022, 11:48 AM
Jul 2022

As to “who decides what’s a conflict” — all lawyers except these 9 are bound by a set of legal ethical rules, and can be sanctioned/disbarred for violating them by the state bar of which they hold membership. This should have been done for Scalia. Some cases are B&W, including those mentioned above; there’s just no way any of these incidents should have been allowed to happen unpunished except that these guys are “above the law,” which violates core legal ethics principles.

Conflicts of interest such as the ones listed above (as well as Scalia ruling on Bush v Gore when his son was a member of one of the law firms arguing the case) are glaringly obvious. Lawyers are expected to avoid even the appearance of impropriety, and these “justices” have been flouting well-established rules, so glaringly obvious, with impunity.

SCOTUS members should be disbarred but that would not require them to step down because being a lawyer is not a requirement for that bench. An inspector-general-type
panel for overseeing SCOTUS might be an answer. This bought-and-paid-for Supreme Court is the gravest insult to our democracy.

Speaker Pelosi was working on creating some rules for the Court, last I heard…

jaxexpat

(6,700 posts)
30. That's easy. We do it democratically.
Mon Jul 4, 2022, 11:55 AM
Jul 2022

1. Does every justice sign for every case?
Only if the group of individuals want them to.

2. Who decides what is a conflict?
The same group of individuals who removed Trump when he showed himself unable to perform his duties as POTUS.

3. Who decided what is a violation of the signed document after the case is heard?
No one, the case hasn't been heard yet. But the decision will be made by the someone selected by the group of individuals.

4. What is the penalty for a violation?
The penalty is the same as is now being given to Trump by that same group of individuals.

has no rules.

Novara

(5,753 posts)
6. Wait - isn't that supposed to be a given?
Mon Jul 4, 2022, 07:45 AM
Jul 2022

Granted, people have been looking the other way since forever. But they're supposed to recuse themselves at any HINT of a conflict. (ha ha ha ha ha, funny - it never happens)

What we need is a SCOTUS oversight body and a code of ethics where it explicitly states recusal rules, because it's clear they can't be trusted. AND we need an enforcement mechanism, like the ability for the oversight body to identify a conflict and remove a justice from a case.




I remember being a kid in school at the end of the school year when the weather got hot and it was pretty uncomfortable in a school with no a/c. The teachers said on the hot days we could wear shorts but no tank tops. There was always the kid who had to push it and wore a tank top. And so the school then said nope, you all have to wear long pants on hot days. And shirts with sleeves. Because one kid couldn't follow an easy rule, all kids had to suffer.

Well, because these justices have no ethics of their own, they need an oversight body with teeth.

Oh, and if they're found to be lying during confirmation hearings? Kick them off the court. Let's have ethics that actually mean something.

Novara

(5,753 posts)
16. Congress can do it
Mon Jul 4, 2022, 08:36 AM
Jul 2022
https://www.politico.com/news/magazine/2022/07/03/dont-expand-the-supreme-court-shrink-it-00043863

snip...............


Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”


Emphasis mine. Congress could define "jurisdiction" to describe cases with potential conflicts of interest, and then determine how those are evaluated.

wnylib

(21,146 posts)
19. But what authority would be able to enforce it?
Mon Jul 4, 2022, 08:58 AM
Jul 2022

AFAIK, Congress does not have any penalty power over the SC, except for impeachment of individual justices.

How would something like refusal to recuse be handled?

Novara

(5,753 posts)
22. The oversight board
Mon Jul 4, 2022, 09:14 AM
Jul 2022

AFIK, Congress can create an oversight board to oversee ethics. I don't think it is expressly forbidden. Congress does have Constitutional authority to AT LEAST institute a code of ethics. If they can do that, they can create an oversight board to administer the code of ethics.

The SCOTUS is not unchecked. At least, constitutionally, they aren't supposed to be completely unchecked. Congress does have some authority here but historically they haven't used it much.


Hell, all this is moot anyway. Congress won't touch the SCOTUS. Yes, I am completely pessimistic.

Response to rgbecker (Original post)

onenote

(42,373 posts)
12. no more likely to get sufficient votes than adding justices
Mon Jul 4, 2022, 08:27 AM
Jul 2022

And who decides what is a conflict of interest?

Oldtimeralso

(1,935 posts)
40. Agreed
Mon Jul 4, 2022, 07:07 PM
Jul 2022

If the extreme court can say that corporations have the rights of people ( ie. Citizens United et al).they should have to face the consequences of their crimes, up to and including execution. Take away their right to do business.

mountain grammy

(26,568 posts)
21. Very interesting..and educational..
Mon Jul 4, 2022, 09:12 AM
Jul 2022

thanks for posting. He's right! Take one targeted action NOW! One simple proposal totally supported by the text of the Constitution!

cbabe

(3,438 posts)
26. Push this idea everywhere all the time. Very few
Mon Jul 4, 2022, 11:42 AM
Jul 2022

even know about these conflicts and ethical wrongs myself included.

Every lawyer in front of the court should talk about it. Every law school. Every news report.

This needs to be common knowledge. Create citizen outrage. Then Congress can be pressured to act.

Mr.Bill

(24,103 posts)
34. Just thinking out loud here,
Mon Jul 4, 2022, 02:43 PM
Jul 2022

but what if we held quarterly national elections where the electorate could overturn any Supreme Court decision. No electoral college, no consideration of state borders, just a national popular vote. The effect would be the people having the final word, not a few appointed judges with no consequences for their decisions.

RANDYWILDMAN

(2,644 posts)
38. I see a pattern here
Mon Jul 4, 2022, 04:44 PM
Jul 2022

justices who are paid political hacks and corporate property aligned with the interests that bought them.


I'm shocked

Mike Niendorff

(3,447 posts)
45. There is also a "break glass" scenario :
Tue Jul 5, 2022, 03:51 AM
Jul 2022

If all else fails, it is *possible* (although unlikely) that 4 Justices *could* block action on any specific case they deem dangerous to democracy.

28 USC 1 (the same federal statute that sets the number of Justices on the Court, currently 9) also sets the number of Justices required to establish a quorum. That number is currently set to 6, and cannot be changed except by a change to this federal law.

Long story short, if 4 Justices were to refuse to participate (or simply recuse) in the proceedings for a particular case, then no quorum would be present under 28 USC 1, and the Court could not act on the case.

Under that scenario, a different federal law (28 USC 2109) establishes fallback procedures for how the case proceeds from there.

The exact handling depends on how the case arrived at the SCOTUS in the first place. If the case arrived on direct appeal from a federal district court, then the case gets handed back to the appellate court for the district in which it originated, and their decision is final. If the case arrived from the appellate court level, then the appellate court's decision is affirmed, and that decision becomes final.

In either case, the SCOTUS would still have the option of punting the case to their next term, but at least it allows for a delay (and, of course, the same 4 Justices could then repeat the process the next term. And the next. And the next. As long as it takes.)

My point being: in the event of a direct and immediate threat to democracy, this option *does currently exist* in our federal laws.

It would require Roberts would join with the 3 legitimate Justices in a "mass recusal", but it is technically possible.

That said, I would argue that the "independent state legislatures" case being teed up for the coming term is exactly such a 5-alarm Constitutional fire. American democracy is in desperate times, and such times call for desperate measures.


MDN



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