Supreme Court, Courts in General, and How They Change in a Multi Party Republic

 For no particular reason, for reasons that have absolutely nothing to do with the fact that Ruth Bader Ginsberg died on September 18th, 2020 for reasons that actually have nothing to do with COVID-19, I want to talk about judges in America and the judiciary more generally.

So, to recap some things. The legislatures and multi member bodies with each member having equal power and their members only having power collectively in America are elected in this model by single transferable vote, primaries nominate their candidates for multi member bodies like legislatures and special district boards (like school boards) by single transferable vote, other positions are elected by ranked ballots with their respective primaries using ranked ballots as well, with majority votes necessary to win. 

To start, let's see how courts are constitutionally regulated. The federal courts are mostly pretty similar in their appointment. The president nominates someone, and the senate confirms them, serving a term of life, although they have the option of retirement (in an odd kind of way), and could in theory be impeached and convicted (which all successful impeachments and senate convictions so far have been, most recently in 2010 of Thomas Porteous). The supreme court is identified in the constitution specifically, and the chief justice is too although that the chief justice is by definition the leader of the supreme court is not actually in the constitution itself, with the congress being able to set up other courts by statutory law, and their salaries are fixed and the salary of a judge cannot be lowered (but it can be raised, unlike a president or congressperson's during their respective term). 

That judges other than the supreme court's judges are appointed by the president with senate consent isn't specifically stated in the constitution, it's only the supreme court that is. That could in theory mean that judges might be appointed by someone else. That mostly doesn't happen at a federal level with a major exception: FISA courts (the courts set up related to the Patriot Act's enforcement of wiretapping and other surveillance authorizations) are appointed by the chief justice. This doesn't give much leeway into other options like the president naming judges based on an independent commission like some countries and states have started doing, but if such a commission could technically be defined to be a court of law, it might be able to be, but that's a quite esoteric thing that is exactly the kind of issue that courts have to sort out.

Judge terms are also sometimes not life. A few are less, like the US Court of Federal Claims with 15 year renewable terms. 

And judges are also not constitutionally mandated to be in this kind of circuit system that most people know appeals courts for being part of. That is dependent on laws of congress, and early American courts in the federal system didn't base their system on that. And it's not fixed at any particular size. The first supreme court, the Jay Court (for all that people think of John Marshall as being the most important chief justice, John Jay started up the whole thing) had himself of course, and 5 associate judges, as per the Judiciary Act of 1789. Judges on the supreme court actually used to be circuit court judges too. The court expanded over time to become 9 by 1837 with the Eighth and Ninth Circuits Act. 

To those who know their history, the Great Depression saw Franklin Roosevelt frustrated at first by court judgments, and so he came up with a plan to try to expand the court by congressional action and then filling in the judgeships with candidates who approved of his position. Congress mulled about it but never passed it, but the court got the hint and began to rule more favourably, putting that question to rest for the most part. 

Circuit, district, and other courts, which by constitutional requirements, are unable to handle anything designated as original jurisdiction belonging to the supreme court (unless it's technically part of shared original jurisdiction which congressional statutes are relevant for determining) and are obligated to handle everything else which the supreme court does not have original jurisdiction over (the latter can hear appeals but not hold a trial over facts. Once the trial is held, the facts are fixed to the extent that they are not ruled to not be valid evidence at all due to the law, and only the questions of law are relevant to the appeals case). This means the supreme court deals with things like when two or more states sue each other (normally over things like the definition of where their borders are, such as whether the Statute of Liberty is in New York or New Jersey, because everything is legal in New Jersey), and also where ambassadors are sued. 

There are no qualifications to be named a federal judge. It's whatever seems to be a good idea in the opinion of the president and senate majority. This comes from a time when law school was only done by a small fraction of the lawyers, most literally just took a law textbook, studied it, and took the test to be a lawyer at the bar. Some were trained more professionally but that mostly meant being a staffer for a current lawyer and learning on the job for about 3-7 years, taking your off hours to study the law textbooks. This was the journeyman system and is most commonly associated with guilds (and this was how most regulated professions were regulated from shoemaking to candles to printing presses). Ergo, the president didn't always have a large pool of candidates who they liked most and were educated in a formal law school. There is no minimum age, so in theory an infant could be nominated and confirmed, but judges have so far on the SCOTUS never been less than 30 years old, most typically 40-60 years old. A few haven't been natural born, in contrast to the presidents born after America became independent. 

Most state judges are organized in a myriad of ways but generally follow some similar pattern with trial courts, normally general jurisdiction courts but most states have their own version of this like family court, drug court, small claims court, a court of chancellery (which is particularly relevant if you know about corporate law in Delaware), those handle the vast majority of cases and trials (if the case even makes it to trial, which most do not). They usually have an appeals court or a few of them in districts around the state. And they have a supreme court (which is confusing in New York because their supreme court is not actually the court of last resort), normally with between 5 and 7 judges, twenty-nine states have 7 judges, fifteen have 5 judge such courts, although six state have it at 9 judges. And a couple states also have different courts with independent appeals and court of last resort for criminal and civil cases, like Texas. 

There are basically five ways to be put on those state courts. One, partisan election. It's a very unexpected system in the eyes of most people to be elected at all to courts, let alone in a partisan election, but this happens. Each party has a primary, and the general election happens. Second, non partisan elections. No party holds a primary, but they often have a primary in general with the top two going to the general election, if there are more than two candidates. Some states divide themselves into districts, some have at large positions with different positions up for election at different times. In the legislative election system, only used by Virginia and South Carolina, the entire legislature holds basically a mini-election with multiple candidates to vote on who would be a judge, usually with the judiciary committees soliciting the candidates for the whole houses to vote on (they decide in a joint session). In the gubernatorial system, the governor nominates and the legislature (or sometimes governors' councils) approves of the appointment in the state senate, mostly a system used in the Northeast (where they also have elected governors councils in general). 

The Missouri system is where, generally, some number of members of an independent commission will be chosen by that state's bar association council (or a committee of it), usually 3-4, and the governor, with the approval of the state senate, will appoint an equal number. The chief justice of the state, often elected by the other members of the state supreme court or sometimes elected to that specific position, will be the chair of the commission. The other positions are normally staggered so that not all of them will be chosen during the same governorship. The commission solicits candidates to be judges, and gives a shortlist, typically 3 names (varying between 2-7) to the governor, which selects one, may have to get it approved by the state senate, and they serve until the next regular election is held (but nor before a minimum term is served, usually a year), where voters vote yes or no on whether to keep them as a judge. You usually get around 2/3 to 4/5 of the vote in favour of keeping them, about 75% is most common. If retained, they serve until the end of a fixed period, from 4-14 years depending on the court, 4-6 for a general court and 6-12 years for a supreme or appeals court being the most common.

Most states also have fixed retirement ages, generally between 68 and 80 (inclusive), varying in whether it means that a judge who will pass that age can't become a judge or run for a term that will cause them to pass that age at some point, others allow a judge to serve the remainder of the term, either way, it wouldn't really be the case that someone would be 87 and still on the court. 

A few other things to remember is that courts are also assisted by juries in civil and criminal cases, one of the few countries where civil juries are commonly used (if the trial actually happens in a civil case), and also where juries are a right for basically any offense (constitutionally mandated by federal constitution for crimes with more than 6 months in prison), and in theory you could in some states get a jury for a parking ticket. Indictments also are federally mandated to use a grand jury, and some states still mandate them too for indictments. 

Also, most cases don't involve the specifically federal constitution. Most are tied to interpreting federal laws (which is how Gorsuch, to everyone's surprise, led the majority decision in an LGBT+ employment equality case a few months ago), sometimes treaties, treaties with American Indians (like the recent case with the Oklahoma Indians), things tied to executive orders too, and state laws and state constitutions. Courts also have to be not just about standard constitutional rights but also provide ordinary justice in the realm of ordinary people, like being able to sue someone if they damage your home or illegally steal part of your salary, and most directly about governmental power, restraining power when police arrest you and the DA tries to prosecute you. Judges can only do so much, as they should be able to do so much as their positions are narrowly tailored and follow a laundry list of rules and procedures and must deal with appeals. 

So, what changes in a multi party system?

One of the first is that judges are generally appointed in a broader and more multi party way. A president can normally get their judges approved with only a majority of votes if they have to, Kavanaugh and Clarence Thomas demonstrated that. With a multi party senate, it's not at all clear that a judge would have any majority from their own party, and would normally not. Latin America has the closest thing to presidential appointments with legislative confirmation in this manner, and while by no means perfect, it is arguably the best example I have. Brazil's Senate confirms federal judges, and you can look at voting records even in a very divided society with many fracture lines, economic inequality, a vast number of political parties, a directly elected president by a majority vote, and no assurance of passing a judge. In the most recent supreme court judge to be confirmed, Alexandre de Moraes was approved 55-13 in a vote with 68 senators present (out of 81), for 2/3 of the total senate and 80.1% of those present in approval. 

Out of those I could find, using the search argument here: https://www25.senado.leg.br/web/atividade/votacoes-nominais/-/v/periodo/01/01/2000/a/26/09/2020, and searching for MSF, which is a Portuguese acronym which gets you the votes on nominations, and specifically about judges, they range in support for judges. 

Brazil's Senate has 8 year terms, only two more than America's, with three senators per state and the federal district of Brasilia, two of them elected in every other congressional election and the remaining third elected in the other congressional elections by bloc vote, and no one party has anything like a majority of the 81 to pass any appointment or law of any kind unilaterally, and executive orders are pretty limited without congressional support, and a simple majority is enough to confirm a judge (or other positionholders). One important difference is that Brazil's Senators vote on appointment confirmations by secret ballot, and also that a lot (about 15-40% depending on the vote) of Senators might not bother to vote or even put themselves on the record of abstaining, and why is something I'm not sure of). I also note that the rates of confirmation are also not consistent, so you will see variance from maybe 50 votes (out of 81) to a full 65 votes out of 81, even when the same session is held and with the same coalition in power, so these party loyalties and approval ratings of nominees does have to be negotiated and is never certain.

I personally counted those records, and out of 101 judges I found in that time period, all but one was confirmed with more than 70% voting in favour, all but six with more than 80% voting, and about two-thirds with more than 90% yes. It's more mixed when you look at the total number of senators voting in favour out of all senators at all, whether present or not, but still, by, 73 to 28, they got more than 60% of the senators voting in favour, and over half with more than two thirds of the senators voting for them. 

Other aspects to consider in the American model will be the state judges, where most action happens. Partisan elections in a multi party system would be really interesting, especially with a ranked ballot in the context of many strong parties each with their own claims, and probably surviving a bruising primary too. A non partisan election may have a lot more candidates, where today, a lot of judges don't have competitors filing. In a Missouri system, the Bar association probably won't be as closely tied with any party with more diversity in their pool of lawyers who elect their governing bodies, and the governor will have a bigger chance of being replaced after even a single election or being recalled partway through, so different individuals are more likely to have influence on the commission's appointees. Of those nominated to be confirmed by the state senate to the commission, the senators will be just like the federal senate in that they won't be so inclined to agree without broad support, so the governor's appointment power there could be minimized. The list they get may well be more different than what they wanted.

The retention elections also won't have one party in the yes and the other no in most cases, if parties even attach their name to a given contest, multiple parties in changing and evolving coalitions will support one judge and others will oppose them, although I suspect that most will be neutral in most votes here with only the most partisan issues likely to drive a major side taking.

Another fundamental thing about the courts is that they depend on the laws. This should be obvious, but it often isn't given that we often think of courts as striking down legislation for constitutional groups. This isn't common, although it certainly happens and is a major development when it does. To pass a law in this situation, or to amend or repeal it, you need a broad coalition, more if the governor or president is opposed to it (and with a direct vote in a ranked ballot, they can need more support than their own party might provide). But the governor or one party isn't an immovable object in the wall, it could be disregarded if it only has maybe 20% of the seats in either house, governor or no governor or president, and refuses to negotiate and enough other parties are on board. 

Ergo, laws that are still inclusive get passed that can restructure the judiciary itself, might add or subtract judgeships to courts and confirm new judges, fix faults in things deemed unconstitutional, and can limit executive power without trying to get the courts to do it slowly, on an extremely specific issue, in an expensive manner, and in the process, making the judiciary even more polarized, and the popular will can be more so expressed in the formation of new laws where the judiciary is rarely that representative and on purpose isn't supposed to be very accountable for judicial decisions, just their personal conduct in office and the most egregious of errors. The judiciary becomes less stagnant and is more of an independent branch trusted by more people, and our decisions to change it and the law come from a popular movement, on purpose, in public, and generally stays quiet with the real choices America needs to make if it is to survive in an ever changing world done by people like you and not a narrow segment of lawyers. 

Switzerland has a judiciary far from what most even developed countries imagine at first glance to be an independent judiciary, like having almost no electoral finance laws at all and basically no disclosure, and elected judges who themselves are commonly not lawyers, with fundamental rights subject to majority votes in referendums like the debate over minarets on mosques, and judges chosen for 4-6 year terms by openly partisan parliaments or public elections (the latter more common in the cantons) and judges themselves often members of political parties. 

But yet, people find themselves tried by multi party panels of judges and get effective access to remedies and it's justice system is not seen to be a very harsh one, and even has decriminalized many drugs (a core issue with the American judicial system). It would be a disaster with just simple first past the post, but with multiple parties, like 5, of similar strength, 4 of which are almost always in the executive branch, it works far better than most would have thought. Their courts are similar to the opinions ordinary people would give in a similar situations if they were told the law is, by design. The law should be something that everyone can access and understand if we are all to be bound by the same law, to give justice without respect to persons, and to do equal right to the poor and the rich. No law should be one where in it's majestic equality, the rich are just as forbidden from sleeping on benches as the homeless.