An interesting article, but I think to make the idea enforceable a constitutional amendment would be required, as the appointment power is vested in the President by the Constitution. No congressional statute or pact could deprive the president of that constitutional power.
Yes, good point. Though, the Senate could potentially constrain itself regarding giving its consent? In the same way it has a filibuster rule constraining its operation.
I think enforceability is not the key thing, as noted.
A vice-justice system would address another potential problem with the Supreme Court, by making it easier for Justices to recuse themselves when there's the possibility of a conflict of interest.
Under the present system, a recusal can shift the balance of the Court in a direction with which the recusing Justice disagrees. I'd be much more willing to recuse myself if I knew I'd be replaced by someone with a similar judicial philosophy.
That would require a more active role for Vice-justices than I was envisioning, but I agree, it could easily be extended to solve that problem as well!
I actually don’t think they are generally partisan, in terms of attachment to political party.
They do have, let’s say, political ideology which they might care about. I think for some that’s a bigger portion of what they care about, and for others it actually is judicial philosophy that they care about (which correlates with politics ofc.)
It’s worth checking out Wiki’s list of how justices break down on every case. It’s less partisan than one might expect.
This just shifts who does the assassinating. It doesn't eliminate the incentives. If you want to affect the court balance you now assassinate an old justice on your side who has a young (or at least healthier) vice justice.
lIt also creates some really nasty procedural problems. Say Roberts dies from a fall down the stairs in his home. Some republicans in Congress allege (as they are incentivized to do) it was actually his wife who pushed him. The DA investigates the case. What happens in the mean time? Does Biden get to appoint a justice in the year the DA spends investigating? Does that mean the DA has the power to remove that new justice by filling charges? What if they offer the wife a slap on the wrist in exchange for a confession? She might want the vice-justice to be appointed and agree.
Ok you say the vice-justice only takes over if the assassin is convicted. Fuck, now the assassin has a *quite strong* case that any jury who might convict him is invalid because they have interests in the outcome (eg whether abortion becomes legal, including for them, depends on their vote). Shit, who hears the appeal on that majorly important issue of law? SCOTUS? Which one?
What even counts as assassination? Is it any charge or murder? What if the justice is in one of those states with 3rd degree murder or with a weird definition of 2nd degree murder. Or overseas? Maybe you say it's federal law. But that's a huge problem bc if the murder didn't happen on us federal land (or other circs) the federal government doesn't have jurisdiction and it can't take on advisory cases. Who is the opposed party?
All of this could be cleaned up easily with another highly-desirable & often-proposed fix to the Supreme Court: not lifetime tenure but a fixed (long) term. Like in Congress itself, the understudy just serves out the rest of the term.
Also, because the Constitution underspecifies the SC (it was never supposed to be what it turned into post-Marbury), you don't need an amendment to do any of this. Remember 'a switch in time that saved nine'?
That could be good, though that does introduce its own problems (which are the reason lifetime tenure was instituted for judges.) Such as:
-- Judges may be biased in order to secure lucrative consulting gig later. We often see bureaucrats and politicians take advantage of the "revolving door" between government and industry. You could ban judges from any occupation after being SCOTUS, though that might dissuade the best minds from signing up. Perhaps one good solution is to automatically give the judge their pre-SCOTUS judging job back.
-- It adds more frequent court fights. If 9 justices are serving 9-year staggered terms, now we'd have a national SCOTUS debate every year, instead of the every, say, 5 years we have now. One could imagine SCOTUS picks overshadowing even the election cycle, in such a case, and even further politicize the court. It might also make the law less reliable, if interpretations start swinging every couple of years, rather than every half-century.
But yes, I generally agree with your concerns about fixed terms so I'm not advocating this overall. Indeed, I'd like to add another one.
I think it's important that during the election there isn't any certainty the president will have some number of appointments. Because planning for someone's death is a little ghastly and it's uncertain it means the canidates can push off pressure to commit to certain appointments. I fear that with a fixed term the pressure to commit to using your appointment for some specific extreme judge to satisfy your base (the moderates tend to be less aware of these issues) would be too great.
That's why I still think it's probably better to skip this idea as a matter of law. However, it might be a nice idea for the parties to make a public political commitment to appointing a judge designated by the assassinated justice in case that happens thereby leaving the grey cases to the political process.
I agree there would be a somewhat stronger incentive to assassinate if there is the belief it will shift the court. I'm less convinced that it makes the risk that much larger but let's assume your theory is correct for the moment.
That means that when you have a Souter type situation (a justice who essentially changes sides, or vice-justice who does so their likely votes diverge) then you've made things substantially worse since you combine the emotional feelings of betrayal with certainty about consequences. To the extent those consequences are going to affect the risk, I'd expect it to be much stronger once you eliminate the uncertainty about whether the assassination would cause a moderate compromise or even a political deal to either leave the seat empty or appoint a similar justice to the seat.
I agree that it's an appealing idea if combined with a reform to fixed length terms (then we could just always have the replacement serve out the remaining term). However, from a practical political standpoint I think it would be better to let each justice designate another article 3 federal judge as their replacement (in some secret letter filed with the court they can change at will). This solves both the Souter problem and the incentive for the president and senate to use the vice-justice position (given it's unlikely to be used) as a bone to throw to their base or an appointment to block to show they are being tough.
If you move to fixed terms this also fixes the incentives which older distinguished judge's like Posner (tho I admit politics might ow block him specifically) from being appointed.
What you say would be true if people were all robots or sociopaths, but we aren’t; the reality is that crazies do sometimes try assassinate people they hate … but I’m not familiar with a single case in history of someone assassinating someone they love/like for the “greater good”. Just doesn’t happen! People aren’t built that way.
Okay, if you don't like that one, here's another: you could have crazies (read as: atypically rationals) CLAIMING to have murdered him. Hilarious courtroom drama ensues.
Yes, but if you don't buy that incentive is it's not so clear that the plan does much to disincentivize assassination in the first place. My actual theory is that most assassins don't actually weigh the consequences that heavily in their analysis at all but are primarily motivated by emotion. That's how we end up with assassinations that backfire. But I included the argument because it's the kind of thing that would convince someone who found the original convincing.
I think the more important issue is less incentives (no spate of justices being killed by thoughtful killers just some kinda disturbed individuals) but the effect an assassination would have which is why I spent the most time on how this would make that problem worse.
Emotions and cost-benefit are not as distinct as you suggest. They are intertwined — if a justice is really hurting one political side (overturning Roe, etc) this will also lead to great emotion on that side. Cost-benefit can also serve as a rationalization; most know that “I hate that person” isn’t a good reason to kill, but if you add in “and it’ll save the country” some crazies will bite (such as the would-be Kavanaugh assassin.)
But what never happens is that cost-benefit outweighs positive emotion and leads to an assassination, which is why the attempt to reverse it doesn’t work. I’m well aware that actions are usually mediated through emotion.
By the way, how did you come to this post? It picked up some steam just now, even though it’s been out for a while.
75 year old justice names 40 year old replacement, lets himself be killed, rinse and repeat - that's not something to be allowed. Also, you would still need the President to nominate the Vice Justice
I don't necessarily agree with your assessment of President Biden's hypothetical response - he would not have nominated someone like Justice Thomas, sure, but I assume he would have asked a Republican politician or a group of them to propose a pick for him and then picked one of the proposals. Remember, this is Joe Biden we're talking about, who takes pride in achieving some bipartisan successes.
I think the best reaction would be for presidential candidates to precommit to doing exactly that - letting their pick be the choice of a member of the other party if a Justice (1) gets murdered (2) for the political purpose (3) of replacing the Justice with one more aligned with the President. Maybe even more specifically "the highest member of the Senate Judicial Committee who belongs to the other party"
You speak as if "lets himself be killed" is just something people do when they feel like it, but it's not. I don't see it as a common problem. If it ever is a problem, the court and country already has bigger problems, in that they have high court justices who are *so partisan* that they're willing to be killed for the cause.
I disagree about Biden's pick, and I think this his record and rhetoric have debunked the whole "bipartisan" pitch from 2020. How much Biden fed into anti-court rage even after the would-be Kavanaugh assassin is a case in point. But such political arguments are unproductive. I'd be happy to bet with you on how bipartisan his pick will be, should Biden be put in this situation. I predict no more than 2 GOP votes for his pick.
I agree that the Presidential pact solution works.
Many people are aware they would die anyway, and even if that's an extreme measure to take, I think it still shouldn't be possible. [Edit: But yes, I'm probably speaking a bit too callously about killing. Sorry.] Probably the more important point is the restriction to political assassinations to get someone more aligned with the incumbent president - if a Justice is shot by a jealous lover, that's just usual mortality, and this would also get rid of "assassinate to get the Vice Justice in" - problems (also to add, I don't think the fastest way if you try to get murdered is necessarily a political assassination, and your senate bill would probably be repealed in an explicit and proven case of a Justice acting like that, at least if the senate disagrees with the Justice. Speaking of which... Now I'm intrigued. If the Vice Justice is just to replace the Justice in the extremely rare case of the Justice being murdered for political purposes in opposition to the Justice, couldn't they just keep their job, as long as it's one they would switch to the SCOTUS seat from? I don't see why a Vice Justice shouldn't be allowed to keep practicing as an attorney if it's less of a formal role anyway, and I'm not sure many great jurists would want to just stay in stasis for 20 years of their life. That's probably in direct contradiction to the other comment proposing to use the Vice Justice when the Justice recuses themselves, but still)
A minor point, but I would say the guy who planned to assassinate Justice Kavanaugh and never carried out an attempt is more of a "would-be 'would-be assassin'". If you had told me someone would plan to assassinate someone, take a weapon, go to their house, see it, and then not just change his mind and silently go away, but turn himself in, I probably wouldn't have believed you. It still sounds insane to me.
Even KBJ got 3 GOP votes, and she's a solidly liberal pick (not necessarily a firebrand, but solid), so I'll definitely take that bet. I'd amend it to "I win if it's a fifth of the GOP senate delegation or more, you win if it's two or less GOP votes, otherwise (including if the question doesn't come up) the bet ends up being moot (and just to be unnecessarily complete: if both are the case simultaneously, I win, but I'm also very confused about what happened. If literally zero senators are in the GOP, then it's moot again. I'm aware both wouldn't happen, but I wanted to define the results completely)", I have a very strong opinion on this and it wouldn't be appropriate to pit far less than my claim against your claim.
To argue against myself a bit, it's not like precommitments on Supreme Court nominations had never been broken before (I think several senators come to mind, you might think a different set of several senators comes to mind). But it would probably be easy to implement (a reporter can simply ask, and it's probably hard to refuse for a politician who wants to claim any decency), and it would be much harder to walk back on after such a horrific act than it is usually.
I see two major problems with this proposal. Firstly, Doug is right that it would be unenforceable without a constitutional amendment, and I think you massively overestimate the Senate's willingness to bind itself here. What would binding itself even look like? Lets say that today the senate passes a resolution, or congress passes a law, saying that the senate will only confirm the vice justice. In a couple of years a justice is assassinated, the president nominates someone other than the vice justice, and the senate votes 53-47 to confirm the nominee (which they will, if the president and senate are on the other end of the political spectrum from the vice justice). Does the nominee take their seat on the supreme court? I think they do. The constitutional requirements have been satisfied.
Secondly, there is a key disanalogy with vice presidents. When the president dies, regardless of the cause, the vice president becomes president. That means that we don't have to figure out why or how the president died to transfer power, we just have to know that they died. Under your proposal, if we have a dead justice, and there is disagreement about whether the death was from murder or accident or natural causes, then we have a constitutional crisis. We then have an incentive not just to murder justices, but to make the murder look like an accident or old age or something. And if, say, a notorious 87 year old justice dies of cancer in September of an election year where the white house is likely to switch parties, a good chunk of her party will likely come to believe it is an assassination.
If you want to make something like this work, I think the most plausible model is to do it by constitutional amendment, and combine it with term limits. Say, each justice serves an 18 year term, and they have a vice justice appointed at the same time they are, by the same president, and confirmed by the same senate, for the same 18 year term. The vice justice could be required to be an Article III judge as their main job, and could, as Hroswitha suggested, sit in for the justice whenever the justice recuses themselves.
An interesting article, but I think to make the idea enforceable a constitutional amendment would be required, as the appointment power is vested in the President by the Constitution. No congressional statute or pact could deprive the president of that constitutional power.
Yes, good point. Though, the Senate could potentially constrain itself regarding giving its consent? In the same way it has a filibuster rule constraining its operation.
I think enforceability is not the key thing, as noted.
A vice-justice system would address another potential problem with the Supreme Court, by making it easier for Justices to recuse themselves when there's the possibility of a conflict of interest.
Under the present system, a recusal can shift the balance of the Court in a direction with which the recusing Justice disagrees. I'd be much more willing to recuse myself if I knew I'd be replaced by someone with a similar judicial philosophy.
That would require a more active role for Vice-justices than I was envisioning, but I agree, it could easily be extended to solve that problem as well!
"judicial philosophy" implies that this is how they make decisions rather than being thoroughly partisan.
I actually don’t think they are generally partisan, in terms of attachment to political party.
They do have, let’s say, political ideology which they might care about. I think for some that’s a bigger portion of what they care about, and for others it actually is judicial philosophy that they care about (which correlates with politics ofc.)
It’s worth checking out Wiki’s list of how justices break down on every case. It’s less partisan than one might expect.
This just shifts who does the assassinating. It doesn't eliminate the incentives. If you want to affect the court balance you now assassinate an old justice on your side who has a young (or at least healthier) vice justice.
lIt also creates some really nasty procedural problems. Say Roberts dies from a fall down the stairs in his home. Some republicans in Congress allege (as they are incentivized to do) it was actually his wife who pushed him. The DA investigates the case. What happens in the mean time? Does Biden get to appoint a justice in the year the DA spends investigating? Does that mean the DA has the power to remove that new justice by filling charges? What if they offer the wife a slap on the wrist in exchange for a confession? She might want the vice-justice to be appointed and agree.
Ok you say the vice-justice only takes over if the assassin is convicted. Fuck, now the assassin has a *quite strong* case that any jury who might convict him is invalid because they have interests in the outcome (eg whether abortion becomes legal, including for them, depends on their vote). Shit, who hears the appeal on that majorly important issue of law? SCOTUS? Which one?
What even counts as assassination? Is it any charge or murder? What if the justice is in one of those states with 3rd degree murder or with a weird definition of 2nd degree murder. Or overseas? Maybe you say it's federal law. But that's a huge problem bc if the murder didn't happen on us federal land (or other circs) the federal government doesn't have jurisdiction and it can't take on advisory cases. Who is the opposed party?
It would be a mess.
All of this could be cleaned up easily with another highly-desirable & often-proposed fix to the Supreme Court: not lifetime tenure but a fixed (long) term. Like in Congress itself, the understudy just serves out the rest of the term.
Also, because the Constitution underspecifies the SC (it was never supposed to be what it turned into post-Marbury), you don't need an amendment to do any of this. Remember 'a switch in time that saved nine'?
That could be good, though that does introduce its own problems (which are the reason lifetime tenure was instituted for judges.) Such as:
-- Judges may be biased in order to secure lucrative consulting gig later. We often see bureaucrats and politicians take advantage of the "revolving door" between government and industry. You could ban judges from any occupation after being SCOTUS, though that might dissuade the best minds from signing up. Perhaps one good solution is to automatically give the judge their pre-SCOTUS judging job back.
-- It adds more frequent court fights. If 9 justices are serving 9-year staggered terms, now we'd have a national SCOTUS debate every year, instead of the every, say, 5 years we have now. One could imagine SCOTUS picks overshadowing even the election cycle, in such a case, and even further politicize the court. It might also make the law less reliable, if interpretations start swinging every couple of years, rather than every half-century.
But yes, I generally agree with your concerns about fixed terms so I'm not advocating this overall. Indeed, I'd like to add another one.
I think it's important that during the election there isn't any certainty the president will have some number of appointments. Because planning for someone's death is a little ghastly and it's uncertain it means the canidates can push off pressure to commit to certain appointments. I fear that with a fixed term the pressure to commit to using your appointment for some specific extreme judge to satisfy your base (the moderates tend to be less aware of these issues) would be too great.
That's why I still think it's probably better to skip this idea as a matter of law. However, it might be a nice idea for the parties to make a public political commitment to appointing a judge designated by the assassinated justice in case that happens thereby leaving the grey cases to the political process.
I agree there would be a somewhat stronger incentive to assassinate if there is the belief it will shift the court. I'm less convinced that it makes the risk that much larger but let's assume your theory is correct for the moment.
That means that when you have a Souter type situation (a justice who essentially changes sides, or vice-justice who does so their likely votes diverge) then you've made things substantially worse since you combine the emotional feelings of betrayal with certainty about consequences. To the extent those consequences are going to affect the risk, I'd expect it to be much stronger once you eliminate the uncertainty about whether the assassination would cause a moderate compromise or even a political deal to either leave the seat empty or appoint a similar justice to the seat.
I agree that it's an appealing idea if combined with a reform to fixed length terms (then we could just always have the replacement serve out the remaining term). However, from a practical political standpoint I think it would be better to let each justice designate another article 3 federal judge as their replacement (in some secret letter filed with the court they can change at will). This solves both the Souter problem and the incentive for the president and senate to use the vice-justice position (given it's unlikely to be used) as a bone to throw to their base or an appointment to block to show they are being tough.
If you move to fixed terms this also fixes the incentives which older distinguished judge's like Posner (tho I admit politics might ow block him specifically) from being appointed.
What you say would be true if people were all robots or sociopaths, but we aren’t; the reality is that crazies do sometimes try assassinate people they hate … but I’m not familiar with a single case in history of someone assassinating someone they love/like for the “greater good”. Just doesn’t happen! People aren’t built that way.
There are a bunch of fun strategies you're missing here: old judges could try to make their natural deaths look like murders.
That's an interesting one!
One hopes that the justices themselves are more honest than that, but with the increasing politicization, who knows I guess ...
Okay, if you don't like that one, here's another: you could have crazies (read as: atypically rationals) CLAIMING to have murdered him. Hilarious courtroom drama ensues.
Yes, but if you don't buy that incentive is it's not so clear that the plan does much to disincentivize assassination in the first place. My actual theory is that most assassins don't actually weigh the consequences that heavily in their analysis at all but are primarily motivated by emotion. That's how we end up with assassinations that backfire. But I included the argument because it's the kind of thing that would convince someone who found the original convincing.
I think the more important issue is less incentives (no spate of justices being killed by thoughtful killers just some kinda disturbed individuals) but the effect an assassination would have which is why I spent the most time on how this would make that problem worse.
Emotions and cost-benefit are not as distinct as you suggest. They are intertwined — if a justice is really hurting one political side (overturning Roe, etc) this will also lead to great emotion on that side. Cost-benefit can also serve as a rationalization; most know that “I hate that person” isn’t a good reason to kill, but if you add in “and it’ll save the country” some crazies will bite (such as the would-be Kavanaugh assassin.)
But what never happens is that cost-benefit outweighs positive emotion and leads to an assassination, which is why the attempt to reverse it doesn’t work. I’m well aware that actions are usually mediated through emotion.
By the way, how did you come to this post? It picked up some steam just now, even though it’s been out for a while.
Scott Alexander of Astral Codex Ten just linked to it.
The appointment for life is the root of the problem. Give them 15-20 year tenures instead.
And stop pretending it's a non-partisan position appointed by the President, it's a political decision made by the Senate.
75 year old justice names 40 year old replacement, lets himself be killed, rinse and repeat - that's not something to be allowed. Also, you would still need the President to nominate the Vice Justice
I don't necessarily agree with your assessment of President Biden's hypothetical response - he would not have nominated someone like Justice Thomas, sure, but I assume he would have asked a Republican politician or a group of them to propose a pick for him and then picked one of the proposals. Remember, this is Joe Biden we're talking about, who takes pride in achieving some bipartisan successes.
I think the best reaction would be for presidential candidates to precommit to doing exactly that - letting their pick be the choice of a member of the other party if a Justice (1) gets murdered (2) for the political purpose (3) of replacing the Justice with one more aligned with the President. Maybe even more specifically "the highest member of the Senate Judicial Committee who belongs to the other party"
You speak as if "lets himself be killed" is just something people do when they feel like it, but it's not. I don't see it as a common problem. If it ever is a problem, the court and country already has bigger problems, in that they have high court justices who are *so partisan* that they're willing to be killed for the cause.
I disagree about Biden's pick, and I think this his record and rhetoric have debunked the whole "bipartisan" pitch from 2020. How much Biden fed into anti-court rage even after the would-be Kavanaugh assassin is a case in point. But such political arguments are unproductive. I'd be happy to bet with you on how bipartisan his pick will be, should Biden be put in this situation. I predict no more than 2 GOP votes for his pick.
I agree that the Presidential pact solution works.
Many people are aware they would die anyway, and even if that's an extreme measure to take, I think it still shouldn't be possible. [Edit: But yes, I'm probably speaking a bit too callously about killing. Sorry.] Probably the more important point is the restriction to political assassinations to get someone more aligned with the incumbent president - if a Justice is shot by a jealous lover, that's just usual mortality, and this would also get rid of "assassinate to get the Vice Justice in" - problems (also to add, I don't think the fastest way if you try to get murdered is necessarily a political assassination, and your senate bill would probably be repealed in an explicit and proven case of a Justice acting like that, at least if the senate disagrees with the Justice. Speaking of which... Now I'm intrigued. If the Vice Justice is just to replace the Justice in the extremely rare case of the Justice being murdered for political purposes in opposition to the Justice, couldn't they just keep their job, as long as it's one they would switch to the SCOTUS seat from? I don't see why a Vice Justice shouldn't be allowed to keep practicing as an attorney if it's less of a formal role anyway, and I'm not sure many great jurists would want to just stay in stasis for 20 years of their life. That's probably in direct contradiction to the other comment proposing to use the Vice Justice when the Justice recuses themselves, but still)
A minor point, but I would say the guy who planned to assassinate Justice Kavanaugh and never carried out an attempt is more of a "would-be 'would-be assassin'". If you had told me someone would plan to assassinate someone, take a weapon, go to their house, see it, and then not just change his mind and silently go away, but turn himself in, I probably wouldn't have believed you. It still sounds insane to me.
Even KBJ got 3 GOP votes, and she's a solidly liberal pick (not necessarily a firebrand, but solid), so I'll definitely take that bet. I'd amend it to "I win if it's a fifth of the GOP senate delegation or more, you win if it's two or less GOP votes, otherwise (including if the question doesn't come up) the bet ends up being moot (and just to be unnecessarily complete: if both are the case simultaneously, I win, but I'm also very confused about what happened. If literally zero senators are in the GOP, then it's moot again. I'm aware both wouldn't happen, but I wanted to define the results completely)", I have a very strong opinion on this and it wouldn't be appropriate to pit far less than my claim against your claim.
To argue against myself a bit, it's not like precommitments on Supreme Court nominations had never been broken before (I think several senators come to mind, you might think a different set of several senators comes to mind). But it would probably be easy to implement (a reporter can simply ask, and it's probably hard to refuse for a politician who wants to claim any decency), and it would be much harder to walk back on after such a horrific act than it is usually.
What if the vice justice assassinates his/her Justice?
What happens if Kamala assassinates Joe?
I see two major problems with this proposal. Firstly, Doug is right that it would be unenforceable without a constitutional amendment, and I think you massively overestimate the Senate's willingness to bind itself here. What would binding itself even look like? Lets say that today the senate passes a resolution, or congress passes a law, saying that the senate will only confirm the vice justice. In a couple of years a justice is assassinated, the president nominates someone other than the vice justice, and the senate votes 53-47 to confirm the nominee (which they will, if the president and senate are on the other end of the political spectrum from the vice justice). Does the nominee take their seat on the supreme court? I think they do. The constitutional requirements have been satisfied.
Secondly, there is a key disanalogy with vice presidents. When the president dies, regardless of the cause, the vice president becomes president. That means that we don't have to figure out why or how the president died to transfer power, we just have to know that they died. Under your proposal, if we have a dead justice, and there is disagreement about whether the death was from murder or accident or natural causes, then we have a constitutional crisis. We then have an incentive not just to murder justices, but to make the murder look like an accident or old age or something. And if, say, a notorious 87 year old justice dies of cancer in September of an election year where the white house is likely to switch parties, a good chunk of her party will likely come to believe it is an assassination.
If you want to make something like this work, I think the most plausible model is to do it by constitutional amendment, and combine it with term limits. Say, each justice serves an 18 year term, and they have a vice justice appointed at the same time they are, by the same president, and confirmed by the same senate, for the same 18 year term. The vice justice could be required to be an Article III judge as their main job, and could, as Hroswitha suggested, sit in for the justice whenever the justice recuses themselves.