There’s little doubt that there have been cases in America’s history of justice being “bought,” literally a court result or judge’s decision coming as a direct result of a cash payment.
Those cases are illegal under bribery laws and in violation of literally every judicial ethics standard.
But now a law professor at Seton Hall, Brian Sheppard, is suggesting a variation of that strategy be escalated to the highest court in the land. He’s suggesting that a president, Joe Biden for example, could change the court’s makeup, and appoint his own justices, by creating openings through the retirements of sitting justices.
Retirements incentivized by huge cash payments.
It is at the Hill that Sheppard explained, “Congress should offer justices buyouts for early retirement.”
“Buyouts are optional and frequently large payments contingent upon retirement or resignation,” he said. “During economic crises, they are a common, legal and effective means for companies to maintain profitability. But governments facing budget crunches use them too. Congress has empowered federal agencies to offer buyouts, which the Office of Personnel Management praises for bringing ‘needed organizational change with minimal disruption to the work force.'”
He, in fact, suggested, it is now that “the Supreme Court needs some organizational change of its own.”
And the system right now doesn’t help.
“So long as our two main parties trade the Oval Office in four- or eight-year intervals, adherence to it will likely keep the 6-3 split in favor of Republican-appointed justices intact,” he said of the rule that justices should retire when their party has the presidency.
“It also gives justices very long tenures. Were they to wait until health or age forced them into the retirement calculus, Justices Ketanji Brown Jackson and Amy Coney Barrett would likely serve on the court for 35 years or more. There is a good possibility that a President Biden or Trump nominee will be serving 120 years after the birth of those men.”
But, he said, “Supreme Court justices are human, and humans care about more than just politics. They care about money, too. The same study showed that becoming eligible for a pension more than quintupled the likelihood that a justice would retire that year.”
The solution, he suggested, is that “Congress should offer substantial buyouts to any Supreme Court justices who retire when they reach 10 years of service on the high court. The five justices who have already exceeded that number should be eligible for the payment if they retire within one year. To overcome the considerable allure of ideological power, the sum should be in the millions.”
He said if Congress doesn’t go along, Joe Biden “might be able to gather sufficient discretionary funds for that purpose with money under his control.”
Online, constitutional expert Jonathan Turley expressed concern over the idea.
“Dean Sheppard insists that offering large sums ‘could be effective without harming the integrity of the institution.’ Many of us would beg to differ. While Sheppard speaks to the benefit of encouraging general turnover on the court, he also notes that ‘the most pronounced turn in favorability coincided with the recent shift to a 6-3 split in favor of Republican-appointed justices.'”
He continued, “It turns out that the majority of justices who would be offered the windfall payments would be Republican appointees. (Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan). That would allow President Biden to appoint an instant five justice majority as well as the chief justice.”
Turley wrote, “So we would have President Joe Biden offering millions to conservative justices to leave the court — and change the philosophical makeup to be more favorable to the Democrats.”
He pointed out Sheppard suggests that a justice not taking the money and running would reveal “the degree to which they are beholden to the power of the office and, in turn, to the political commandment.”
Turley noted, “Here is an alternative idea. Why not put away both the stick and the carrot and allow the court to function as originally designed? It is at least a thought.
“The idea of seats-for-cash only seemed to arise when the court’s balance shifted to a stable conservative majority and, as Dean Sheppard noted, legislative solutions could not be found to changing the court. The court does not need either a carrot or a stick. It requires a respect for the institution as a whole regardless of whether it is yields to the views of Congress or the public. The seats-for-cash offer is as insulting as it is dangerous for the court,” he said.