Saturday, December 27, 2014

Thoughts on Supreme Court reform

The legislature wants to amend the Constitution to allow the justices on the Supreme Court to select their own chief justice and to pass a statute setting  a mandatory retirement age for judges. The latter does not require a constitutional amendment because the state constitution already empowers the legislature to set such an age at not less than 70. Current proposals would set the retirement age at 75.

I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.

It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.

The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.

But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.

There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)

Cross posted at Purple Wisconsin.

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