Date: 02/12/2021
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Rather than packing the Supreme Court, make judging impartial

by Lev Tsitrin

Another day, another Biden initiative -- this time, as the New York Times informs us, "Biden Creating Commission to Study Expanding the Supreme Court"

Why pack the court?  "The president acted under pressure from activists pushing for more seats to alter the ideological balance of the court after President Donald J. Trump appointed three justices, including one to a seat that Republicans had blocked his predecessor, Barack Obama, from filling for almost a year. The result is a court with a conservative 6-to-3 tilt."

Which begs a question: why does judges’ tilt matter if judging is impartial?

Indeed, despite all assurances to the contrary, it isn't, as I explained elsewhere The mechanism of injecting judges' own views into decision-making process is simple: while judges take for adjudication parties' argument, it is not what they adjudicate. The argument they actually adjudicate is very different indeed -- it is judges' own argument. This is acted out right in the open by the Supreme Court. The only reason decisions of the Court are not unanimous, but are often split 4-to-5 is that justices come up with their own argument for, and against the plaintiff's and defendant's positions, acting as lawyers first, and judges afterwards -- to cast their vote for the argument that is irresistibly convincing -- because it is their own argument. 

This is course if a far cry from impartiality. An impartial judge cannot be a party to the case, he cannot be a lawyer for the side he wants to win. That's why there is recusal. Of course we hear that judges neither pitch nor bat, but only call balls and strikes, as Chief Justice Roberts assured us during his nomination. This line serves well for getting nominated -- but upon nomination, gets instantly forgotten. Check who pitched the argument that individual mandate is tax -- the argument that saved Obamacare. If I recall correctly, this was not Obama's argument -- he faced re-election and did not want to highlight the fact that he raised taxes. Nor was it Obamacare opponents' argument -- it worked against them, not for them. It was Chief Justice Roberts' argument, as he acted as a lawyer for the Obama administration before acting as a judge. If Roberts neither pitched nor batted, there would be no Obamacare.

And this is how it works, case after case. I am not even talking of SCOTUS' lack of sheer capacity to hear cases -- it acts as a single judge, and this is what determines its capacity. It gets 10,000 petitions annually, but it can only hear some 200, with a result that, a century ago, SCOTUS was allowed to choose its cases. So despite our pride in our three-tier system of justice, we only have a 2.02-tier system, since the Supreme Court can hardly be said to exist -- only 2% of its cases are decided by justices themselves; the fate of what goes in, and what gets tossed, is decided by justices' clerks .

So can anything be done? What recommendations should Biden's committee make?

 I would suggest we make judges impartial, by adding the practice of "sua spontism" that allows judges to adjudicate their own, rather than parties’ argument, thus poisoning the judicial decision-making process, to the criteria of judicial misconduct which now includes only drug use, drunkenness and suchlike, but has nothing that blocks arbitrary decision-making. If the decision in which the judge who acted as a lawyer for the favored party gets automatically vacated, and the judge himself is booted from the bench, or jailed for fraud, there won't be much difference between the conservative and liberal judges insofar as their decisions are concerned. Instead of being politicized, judging will become professionalized. A democrat car mechanic should be expected to do the same job as a republican one; and a democrat judge weighing the plaintiff's argument against that of the defendant for factual accuracy, relevance, and relative weight, neither adding anything to either parties' argument, nor removing from it, will have to arrive at the same result as the republican one. Inability to sneak in judge's own argument will insure and enforce his Impartiality.

This change to the judicial decision-making process will have another huge benefit, too. It will make collective decision-making unnecessary, allowing Supreme Court justices to work independently, thus increasing the Court's workload nine-fold, to 1,800 cases per year. This is not ideal, since this is still just a mere 18% of submitted cases -- but in that context, expansion of Supreme Court starts to really make sense. If expanded to 55 justices, the Court will indeed be fully able to perform its constitutional task of being the third tier of the justice system – as it did until 1920es when the backlog of cases swamped it, and the present system of selective judging was adopted.

Bottom line -- no amount of tinkering will help make courts fair if the current judicial decision-making process remains. Change the number of judges, limit their term to a set number of years, or to the age of the judge -- and the Court will continue to be a tool of politics. Professionalize it -- and it becomes the tool of justice.

So the question is -- what do we really want? Do we want due process irrespective of the outcome, or the desired outcome irrespective of fairness of the process?

That's the question that Biden's commission should answer first -- and build its recommendations based on that answer. And by its answer to that fundamental question, Biden's intentions should be judged.

Lev Tsitrin is the founder of the Coalition Against Judicial Fraud,

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