A Modest Proposal for Justice Scalia's Seat

7 Pages Posted: 19 Mar 2016 Last revised: 3 Apr 2016

See all articles by Aneil Kovvali

Aneil Kovvali

Indiana University Maurer School of Law

Date Written: March 17, 2016

Abstract

The unexpected death of leading conservative Supreme Court Justice Antonin Scalia during the final year in office of liberal President Barack Obama has had a seismic effect on the political scene. Even before President Obama had nominated a replacement, members of both parties aggressively staked out contrary positions. Part of the acrimony is surely driven by the stakes: the Supreme Court has taken on an increasingly central role in our national life, and a lifetime appointment to the Court would reshape its direction for decades to come. The prospect of a lame duck President making a choice with such long term consequences as a result of the unanticipated death of one man naturally raises meaningful concerns. But it also creates a real opportunity to revisit the institution of lifetime tenure on the Supreme Court. While lifetime tenure on the Supreme Court is commonly assumed to be required by the Constitution, the Constitution actually grants Congress substantial flexibility in structuring the judicial branch. Congress might use this flexibility creatively, to create judges who enjoy life tenure but spend only part of that tenure on the Supreme Court. President Obama would then be able to fill Justice Scalia’s seat without remaking the Court for decades to come. Even if this approach were ultimately unsuccessful, it would be an unusually constructive resolution of an otherwise difficult impasse.

Keywords: Supreme Court, Life Tenure, Separation of Powers

JEL Classification: K40

Suggested Citation

Kovvali, Aneil, A Modest Proposal for Justice Scalia's Seat (March 17, 2016). 102 Virginia Law Review Online 1 (2016), Available at SSRN: https://ssrn.com/abstract=2749476

Aneil Kovvali (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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