Skip to content
  • About
  • Contact
  • Contribute
  • Book
  • Careers
  • Podcast
  • Recommended
  • Speaking
  • All
  • Physician
  • Practice
  • Policy
  • Finance
  • Conditions
  • .edu
  • Patient
  • Meds
  • Tech
  • Social
  • Video
    • All
    • Physician
    • Practice
    • Policy
    • Finance
    • Conditions
    • .edu
    • Patient
    • Meds
    • Tech
    • Social
    • Video
    • About
    • Contact
    • Contribute
    • Book
    • Careers
    • Podcast
    • Recommended
    • Speaking

A call schedule to fix the Supreme Court

Arthur Williams, MD
Policy
December 24, 2020
48 Shares
Share
Tweet
Share

Though pushed to the back-burner by the never-ending orange election drama, the Supreme Court, with its significant conservative majority earned against the run of play, (to borrow a metaphor from sport) is one decision away from potential political irrelevance. Is there a way forward for the Supreme Court? Conservative hypocrisy and liberal outrage at the recent Republican machinations to pack the court with conservative jurists out of step with the country’s norms and values as a whole has the left looking for solutions when the reins of power pass into their hands. Should the Senate Democrats prevail in Georgia, the clamor to fix the conservative Senate’s perceived double-dealings will be uncomfortably vociferous.

As it is now composed, the decisions of the Court should they vote to reverse decades of precedential jurisprudence and rile those who voted in a left-leaning administration, leading to questions of legitimacy of the highest court in the land. Imagine the outcry should a woman’s right to control her own reproductive self-determination be overturned by a 5-4 decision led by Trump’s three appointees. Yet, solutions aimed at increasing the number of jurists, should the Democrats control all three legislative checkpoints, fall somewhere on the spectrum from unpalatable to unconscionable.

And yet, bedrock cases are at risk of being overturned, out of step with the plurality of Americans’ morality and sense of social justice, cases essential to health care, reproductive rights, gay marriage, and racial injustice. For many on the left, this conservative judiciary seems patriarchal, bordering on illegitimate, where the court proselytizes how we ought to live or behave.

But simply expanding the court is a dangerous precedent for any party that is unlikely to retain power in perpetuity. The Supreme Court held fast at the odd number nine for over one-hundred and fifty years, has been like a spinning wheel for our democracy, inertially stable and gyroscopically resistant to change from pushes from either the left or the right.  When FDR’s Democratic Party controlled the Senate and House, the Democratic senators were reluctant to monkey with the sacrosanct number on the high court, even after the conservative court had ruled against the immensely popular FDR and some of his left-leaning initiatives. The backlash against the conservative court swayed the jurists to rethink some of their conservative decisions, allowing popular New Deal legislation to pass muster when others previously had been ruled unconstitutional.  The threat of court-packing by FDR and with it, the possible dilution of the power of the individual Supreme Court judge led to a change in tactics for the hard-headed conservative bloc that was opposing the New Deal initiatives and the will of the nation trying to extricate itself from the miasma of the Great Depression.

Should President Biden find himself confronted with a similar judiciary, willing to overturn Roe vs. Wade, affirmative action, or the ACA, he might find the metaphoric footprints of FDR tempting to retrace. One option, not available to Roosevelt, would be to admit Puerto Rico and Washington, DC as states. Here are four million tax-paying Americans without representation, more than Wyoming, North Dakota, South Dakota, and Montana combined. This would keep the Senate from falling into minority hands and confirm judges representing the country in thought and pattern. Over time, the crisis would abate. For most on the impatient left, this would not go far enough and could ultimately jeopardize crucial laws held as sacrosanct in the near term.

For a president unwilling to upset the judiciary’s inertial wheels by out and out packing of the court to find a new liberal majority, a more subtle tack might be effective and fair. Instead of having a court with only nine members, the supreme judiciary could be composed of a faculty or a bullpen of jurists, say twelve in number, nine of which would be “on-call” for each case that comes down the docket. Ideally, it would have an equal number of left and right-leaning judges, but this could obviously not be guaranteed. With six liberal judges and six conservative judges, a team of nine could be allocated randomly in the juridical bullpen that would fairly assign, from a bench of qualified judges, a jury to decide each case. Without a conservative anchor like Thomas or Alito or a liberal adjudicator like Kagan or Sotomeyer deciding every case, a more centrist doctrine might emerge. While the idea of random assignment of jurists to an important case might not appeal to everyone, it would add a layer of expectation or excitement, the way a lottery drawing might invite enthusiasm for those invested in winning.

Supreme Court jurists are confirmed for life and can have a significant impact on American legislation. Term limits for the Supreme Court jurists have been proposed to quash the establishment of an oligarchical powerbase in an unelected, lifetime-appointed judiciary. When the court is evenly divided, this often gives outsized leverage to the swing jurist for decisions with a huge impact on American lives. Having a faculty of jurists might restore some sensibility to this manifestation of oversized power wielded by a handful of jurists, or even a single judge, that the founders could not have foreseen.

If a bank of judges, as was the case during the New Deal, holds more power than the legislative and executive branches, it rankles the electorate and erodes the court’s legitimacy. Having an extended group of judges with a similar number of right and left-leaning appointees to form a team of nine to decide a case breaks up this bank and ensures that no one president can inordinately tip the scales in his party’s favor. This also almost guarantees that no one jurist plays an oversized role in deciding the fate of our democracy.

With this system, there would no longer be a vacancy on the court. If a judge retires or dies or recuses on a case, the faculty would be able to send in another jurist right away. Likely each side would want to fill the court with as many like-minded judges as possible, but because there would be no guarantee that any chosen judge would adjudicate every decision, the confirmation process might be less venomous.

Various details could be hashed out, like whether the Chief Justice would be seated for every case, or whether each judge would hear and participate in every case but only nine randomly chosen to write opinions. The added number of jurists would soften charges of court-packing from the right. The Republicans over the last four years willfully ignored Uncle Ben’s admonishment to Peter Parker, that with great power comes great responsibility. They abdicated any responsibility to the American people by allowing Trump and Senator McConnell to run roughshod over the judicial nomination procedure norms. This requires correction but in a fair way and avoids the cyclic retribution that has become commonplace in today’s body politic. President Biden should add three members to the Supreme Court faculty, starting with Merrick Garland, to right the wrongs of the Right’s willful negligence and overt hypocrisy of the last few years. Thenceforth, the random allocation of jurists to opine on each case ensures that no one president can leave an oversized boot print on the decisions of the court and would secure the legitimacy of the court for years to come.

Arthur Williams is a surgeon and author of The Surgeon’s Obol.

Image credit: Shutterstock.com

Prev

The laws of The House of God and Man's 4th Best Hospital

December 24, 2020 Kevin 2
…
Next

Why corruption is ruining your health care [PODCAST]

December 24, 2020 Kevin 0
…

Tagged as: Public Health & Policy

Post navigation

< Previous Post
The laws of The House of God and Man's 4th Best Hospital
Next Post >
Why corruption is ruining your health care [PODCAST]

More by Arthur Williams, MD

  • The hidden costs of teaching surgery: an academic surgeon’s perspective

    Arthur Williams, MD
  • Ode to a little bile bag

    Arthur Williams, MD
  • An operative field of dreams

    Arthur Williams, MD

Related Posts

  • Will the Supreme Court destroy the Affordable Care Act?

    Robert Laszewski
  • It is time for the Supreme Court to help stem gun deaths

    David Galinsky, MD
  • While managing her schedule, a medical student learns 2 important concepts

    Jamie Katuna
  • The detrimental effect on patients of an insurance company slashing its fee schedule

    Clifford L. Deal, MD
  • How this medical student adjusted her study schedule for better self-care

    Aveena Pelia
  • Why this physician teaches health policy in medical school

    Kenneth Lin, MD

More in Policy

  • Unveiling the intricate link between housing costs and health care

    Harvey Castro, MD, MBA
  • Uncovering the truth about racial health inequities in America: a book review

    John Paul Mikhaiel, MD
  • Why affirmative action is crucial for health equity and social justice in medicine

    Katrina Gipson, MD, MPH
  • The untold story of Hispanic/Latino health: Why subgroup data matters

    Matthew B. Alonso
  • Unmasking the brutal reality of gun violence in America: a call to action for unity and meaningful change

    Osmund Agbo, MD
  • Family physicians unite at the U.S. Capitol, seeking congressional support for Medicare reform and health care transformation

    Tochi Iroku-Malize, MD, MPH, MBA, Sterling N. Ransone, Jr., MD, and Steven P. Furr, MD
  • Most Popular

  • Past Week

    • Why affirmative action is crucial for health equity and social justice in medicine

      Katrina Gipson, MD, MPH | Policy
    • The hidden factor in physician burnout: How the climate crisis is contributing to the erosion of well-being

      Elizabeth Cerceo, MD | Physician
    • The power of coaching for physicians: transforming thoughts, changing lives

      Kim Downey, PT | Conditions
    • Why doctors aren’t to blame for the U.S. opioid crisis [PODCAST]

      The Podcast by KevinMD | Podcast
    • Unlocking the secrets of cancer conferences: an end-of-life counselor’s journey among pharmaceutical giants

      Althea Halchuck, EJD | Conditions
    • Physician entrepreneurs offer hope for burned out doctors

      Cindy Rubin, MD | Physician
  • Past 6 Months

    • Breaking point: the 5 reasons American doctors are dreaming of walking away from medicine

      Amol Shrikhande, MD | Physician
    • “Is your surgeon really skilled? The hidden threat to public safety in medicine.

      Gene Uzawa Dorio, MD | Physician
    • It’s time to replace the 0 to 10 pain intensity scale with a better measure

      Mark Sullivan, MD and Jane Ballantyne, MD | Conditions
    • Revolutionize your practice: the value-based care model that reduces physician burnout

      Chandravadan Patel, MD | Physician
    • Unveiling the hidden damage: the secretive world of medical boards

      Alan Lindemann, MD | Physician
    • Breaking the cycle of racism in health care: a call for anti-racist action

      Tomi Mitchell, MD | Policy
  • Recent Posts

    • A pediatrician’s journey into integrative medicine [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why allowing yourself to embrace discomfort is necessary for personal growth

      Jillian Rigert, MD, DMD | Physician
    • Unconventional health care, flawed studies, and biases: Navigating the complexities for optimal well-being

      Kara Wada, MD | Physician
    • Urgent innovation needed to address growing mental health crisis among children and families

      Monika Roots, MD | Conditions
    • The importance of listening in health care: a mother’s journey advocating for children with chronic Lyme disease

      Cheryl Lazarus | Conditions
    • Medical errors and the power of apologies [PODCAST]

      The Podcast by KevinMD | Podcast

Subscribe to KevinMD and never miss a story!

Get free updates delivered free to your inbox.


Find jobs at
Careers by KevinMD.com

Search thousands of physician, PA, NP, and CRNA jobs now.

Learn more

View 12 Comments >

Founded in 2004 by Kevin Pho, MD, KevinMD.com is the web’s leading platform where physicians, advanced practitioners, nurses, medical students, and patients share their insight and tell their stories.

Social

  • Like on Facebook
  • Follow on Twitter
  • Connect on Linkedin
  • Subscribe on Youtube
  • Instagram

CME Spotlights

From MedPage Today

Latest News

  • UnitedHealthcare in the Hot Seat Over GI Procedure 'Advance Notification' Policy
  • Genetic Risk Score Predicts Hypertensive Disorders of Pregnancy
  • FDA Warns on Certain Forms of Compounded Semaglutide
  • Fired COVID Whistleblower Doesn't Want to Settle His Case
  • Video of ACOG Presenter Being Slapped Goes Viral

Meeting Coverage

  • TAR-200 Led to High Complete Response Rates in BCG-Unresponsive Bladder Cancer
  • More Success for CAR T-Cell Therapy in Rheumatic Disease
  • Trial Shows RA Can Be Stopped at Preclinical Stage
  • Tenapanor Improves Abdominal Symptoms in Patients With IBS-C
  • Benefits Found for Hand OA Drug Treatments
  • Most Popular

  • Past Week

    • Why affirmative action is crucial for health equity and social justice in medicine

      Katrina Gipson, MD, MPH | Policy
    • The hidden factor in physician burnout: How the climate crisis is contributing to the erosion of well-being

      Elizabeth Cerceo, MD | Physician
    • The power of coaching for physicians: transforming thoughts, changing lives

      Kim Downey, PT | Conditions
    • Why doctors aren’t to blame for the U.S. opioid crisis [PODCAST]

      The Podcast by KevinMD | Podcast
    • Unlocking the secrets of cancer conferences: an end-of-life counselor’s journey among pharmaceutical giants

      Althea Halchuck, EJD | Conditions
    • Physician entrepreneurs offer hope for burned out doctors

      Cindy Rubin, MD | Physician
  • Past 6 Months

    • Breaking point: the 5 reasons American doctors are dreaming of walking away from medicine

      Amol Shrikhande, MD | Physician
    • “Is your surgeon really skilled? The hidden threat to public safety in medicine.

      Gene Uzawa Dorio, MD | Physician
    • It’s time to replace the 0 to 10 pain intensity scale with a better measure

      Mark Sullivan, MD and Jane Ballantyne, MD | Conditions
    • Revolutionize your practice: the value-based care model that reduces physician burnout

      Chandravadan Patel, MD | Physician
    • Unveiling the hidden damage: the secretive world of medical boards

      Alan Lindemann, MD | Physician
    • Breaking the cycle of racism in health care: a call for anti-racist action

      Tomi Mitchell, MD | Policy
  • Recent Posts

    • A pediatrician’s journey into integrative medicine [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why allowing yourself to embrace discomfort is necessary for personal growth

      Jillian Rigert, MD, DMD | Physician
    • Unconventional health care, flawed studies, and biases: Navigating the complexities for optimal well-being

      Kara Wada, MD | Physician
    • Urgent innovation needed to address growing mental health crisis among children and families

      Monika Roots, MD | Conditions
    • The importance of listening in health care: a mother’s journey advocating for children with chronic Lyme disease

      Cheryl Lazarus | Conditions
    • Medical errors and the power of apologies [PODCAST]

      The Podcast by KevinMD | Podcast

MedPage Today Professional

An Everyday Health Property Medpage Today
  • Terms of Use | Disclaimer
  • Privacy Policy
  • DMCA Policy
All Content © KevinMD, LLC
Site by Outthink Group

A call schedule to fix the Supreme Court
12 comments

Comments are moderated before they are published. Please read the comment policy.

Loading Comments...