David Orentlicher (UNLV William S. Boyd School of Law) has posted Supreme Court Reform: Desirable -- And Constitutionally Required on SSRN. Here is the abstract:
As decisions by — and appointments to — the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of 18 years, such that one term ends every two years. That way, less would be at stake with each nomination, justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.
With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.
But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country.