Posts published in November 2021

There are a number of problems with the present-day structure of the U.S. Supreme Court, but the number of seats is not one of them. We have done very well with just nine seats since 1869 and really don’t need any more than that for the Court to function properly. Of much greater concern is the lack of turnover. There has been an increasing tendency of Presidents to appoint people in the infancy of their legal careers in hopes they will serve until they draw their final breath--sort of a cradle-to-grave system.

Adding four seats to the Court might correct the current ideological imbalance, but is it really a good idea to add seats every time one party decides the Court might need rebalancing? It gives the appearance of playing politics with what we like to regard as a relatively apolitical institution.

And how about trying to get thirteen lawyers-turned-judges to arrive at a coherent majority opinion? Even with a nine-member Court, the Justices often write such a number of separate opinions in important multi-issue cases that it is difficult to know what the Court is really saying. The more members, the harder it will be to reach results that the public can rely upon. Is it any wonder that our U.S. Circuit Courts of Appeal generally hear and decide cases in three-judge panels.

Limiting terms of service might be a reasonable fix, but that would probably require an amendment to the Constitution, which is highly unlikely. However, in 2009 a group of distinguished legal scholars suggested a statutory plan whereby each President would make one Supreme Court pick after every federal election. The longest-serving Justice would remain on the Court, but on senior status. Senior Justices would not actively sit on cases, except where a sitting Justice could not participate. Under this plan, Justice Thomas would be the first to take senior status, followed by Justice Breyer and then Justice Alito.

This reform would bring new blood to the Court on a regular basis. By removing the incentive to appoint youngsters who would serve until they die, the plan would very likely result in the appointment of older, tested, more-experienced lawyers or jurists. Some of the most qualified members of the bench and bar are currently excluded from consideration simply because the politicians want their candidates to serve the very longest time humanly possible. The last three Court appointments were ages 49, 53 and 48.

I have no pretensions of being a distinguished legal scholar, but I joined the Idaho Supreme Court at age 63 and voluntarily retired after serving 12 years. After law school, I served as an artillery officer in Vietnam, three years as legislative assistant for a U.S. Senator, 8 years as Idaho Attorney General and 25 years in private practice. I’m aware of any number of lawyers and judges across the country with valuable experience and distinguished legal careers who would be ideal candidates for the Supreme Court, if eligibility were open to those over 55 years of age.

This plan would solve another problem for the Court--recusals. Even on state supreme courts, like Idaho’s, where senior justices are available in the event of a recusal, there is some reluctance to recuse oneself from an important case. There is no provision for substitutes in U.S. Supreme Court cases, making it even more difficult for Justices to recuse when they really should do so, partly for fear of a tie vote. However, with a stable of senior Justices to fill in upon a recusal, there should be no tie-vote concern.

Senior Justices could also be deployed to reduce backlogs in crowded U.S. Circuit Courts of Appeal around the country by participating in Circuit Court cases.

It is time to dispense with a system that fosters a cradle-to-grave Supreme Court. So many well-seasoned individuals who would be a credit to the Court are ruled out simply because they would not be able to serve for 3 or 4 decades. Plus, periodic turnover is a good thing. The longer a Justice sits in the ivory tower of the Court, the greater the likelihood of losing touch with the real world.

**This opinion piece was first published in The Hill and was submitted to President Biden’s Presidential Commission on the Supreme Court for consideration. The Commission is expected to release its report during November.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General and twelve years as a Justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill online news outlet.

If we were not still in the grip of a deadly pandemic, with the 7-day average death toll from the coronavirus hovering just over 1,100 a day, I probably would not have thought of giving thanks this year for the medical researchers who have given this country protection against many life-threatening illnesses. Thinking back to the late 40s and early 50s, when I became aware of vaccinations, my thoughts were anything but thankful. When a doctor or nurse brought out a needle, they had to pry me out from behind the furniture to administer a shot. I refused Novocaine in the dentist’s office.

Then came the 1952 polio epidemic, which was the worst outbreak in the nation's history. We saw pictures of kids in iron lungs--huge mechanical devices to help kids breathe. We did not know what caused polio but we were told not to gather together or drink from public fountains or swim in public pools. My uncle, Uli, got polio and his legs withered, bringing the disease close to home. When the Falk polio vaccine became available about 1955, everyone in our community and across the country could not get shots fast enough.

That softened my dread fear of needles. It further softened over the years when the effectiveness of various vaccines was proven time and again--Measles, Mumps, Rubella, Diphtheria, Tetanus, and so on. When I developed hay fever, it was a mixed blessing. I did not have to work in the hay, which was the worst work on the farm, but I did have to get regular injections, which my Mom did very slowly so as not to hurt. Yikes!

Then, in 1968, I volunteered to fight in Vietnam and had to get a long list of vaccinations. Everyone had to take the vaccinations for the protection of the entire unit--the old thing about the chain breaking at the weakest link, obviously the unvaccinated one. They included Plague, Yellow Fever, Typhus, Cholera, Typhoid Fever, and the very worst, gamma globulin in the posterior for Hepatitis. It left a big bump in the rear that slowly dissipated over a week or so.

As one continues through life, it is easy to take for granted the fact that you don’t have to worry about the dread diseases that our ancestors had to face on practically a daily basis. Plague and smallpox wiped out entire populations before the scientific

community developed means of prevention that could be administered in a painless injection. We don’t know how very fortunate we are and how thankful we should be.

When I was a kid and we learned that someone in the community had been diagnosed with cancer of practically any variety, we all thought it was a death sentence. When Doctor Gupta called on January 13, 2017, to say that I had pancreatic cancer, that was my very question--”Is this a death sentence.” His response was, “not necessarily.” I was told later that chemotherapy would increase my chances of survival to 30%.

In order to get chemo, you had to get a whole range of shots, which I gladly accepted and would have taken many more. It was not a question as to whether the FDA or anyone else had given its blessing to any of them. My trusted physicians had said they were necessary and that was enough. They put a port in your chest so they could mainline it and you were happy to put up with all of it for a chance of survival. You see many other dear souls in the injection lounge taking in stuff that some would call poison, just for the chance of more life with their loved ones --not a lot of bellyachers and dissidents in that venue. I’m now 4-years cancer free.

So, let me raise a toast this Thanksgiving weekend to the doctors, nurses, medical researchers and other medical personnel who have strived so hard over the many years to find ways of saving the public from illness and death at the hands of deadly diseases such as COVID-19 and all of the other scourges I’ve previously mentioned. We owe you, we salute you and we thank you from the bottom of our hearts, which are still beating because of you.