A Surprise Amendment

With few exceptions, the constitutional amendments suggested by experts in “Taking Another Look at the Constitutional Blueprint” have been discussed in the legal literature and in recent books. But one surprise among your list was the amendment to dismiss the exclusion of the foreign-born from presidential eligibility, suggested by Hiller B. Zobel and John Kenneth Galbraith. The Canadianborn Galbraith gets top honors for combining insight and whimsy as he muses at how his life (and ours) might have been different had such an amendment been adopted in his early years.

A few authors suggested means of taming the Supreme Court, but none suggested an amendment restricting the term of office for the Justices themselves. In a little-known article published in the George Washington Law Review in 1938, Charles Collier suggested such a move in the wake of FDR’s failed court-packing attempt. He contemplated a system of rotation whereby one seat on the Supreme Court would be replaced each year with a new appointment. Under one version of this scheme, each of the nine Justices would serve a nine-year term. In order to initiate the system of rotation, current appointees would be assigned a fixed term of ten to eighteen years by lot, with no two Justices assigned the same number of years’ service. After serving on the High Court, Justices would be allowed the opportunity to serve as circuit court judges without diminution of compensation. In the recent past Justice Potter Stewart served as a role model for such a plan, resigning from the Supreme Court at age sixty-six, then sitting on numerous courts of appeals. As Justice Stewart said upon his resignation from the High Court, “Better to go too soon than to stay too long.”

The proposed system of rotation would serve to provide each administration an opportunity to appoint new Justices and ensure that the Court is continually infused with new perspectives, whilst maintaining enough stability among the Court’s membership to take advantage of Justices’ individual and collective expertise.