Q: My sense is the majority of our Supreme Court is out of touch with what most Americans want, and there is a level of corruption going on. Can anything be done?
J.M., Boyle Heights
A: One consideration is to add more justices. Under the United States Constitution, the number of Supreme Court justices is not fixed. Congress could change the number by passing an act to be signed by the president. In fact, the number of justices has changed on occasion, starting with six back in 1789, then reduced to five in 1801, but that was quickly modified back to six. A seventh was added in 1807.
The next change was in 1837. President Andrew Jackson added two additional justices, though in time that went back to seven, but then back to nine again soon thereafter, where it presently remains.
President Joe Biden also recently indicated his support for term limits on Supreme Court justices (who currently serve for life “on good behavior”), as well as an ethics code that would have enforcement mechanisms.
Bottom line, as things stand, it will largely be up to Congress if changes are going to be made of substance to the Supreme Court. Some changes would seem to be sensible. For example, do we really want justices on the highest court in the land serving indefinitely? Elected officials typically have terms limits, so perhaps that would be of import with the Supreme Court as well.
Q: How does an appeal ever get to the United States Supreme Court?
A.C., Venice
A: When a party loses a case decided by a federal court of appeals, or by the highest court of a state, it can file a brief known as a petition for certiorari (“a cert petition”), which asks the Supreme Court to weigh in. This means the Supreme Court will decide whether or not to grant review, hear oral argument after briefing and thereafter render a decision. The other side (the one that prevailed at the lower court) has 30 days to file a brief asserting that the Supreme Court should not hear the matter.
The Supreme Court generally will consider whether to review a case about a month after opposition is filed, if any; there are, however, some time frames (specifically, June until later September) when the court does not regularly meet to consider cert petitions.
For the Supreme Court to decide to take-up a case, at least four justices must vote affirmatively (thus, at least four out of nine). Once the court announces it is granting cert (which, by the way, is not at all common), then the full briefing process starts, after which oral argument is scheduled.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
