Judiciary

 

Here Come The Judge

Order in this courtroom, order in this courtroom
Judge, your Honorship, Hi sir
Did I hear you say "Order in the Court?"
Yes I said order in the court

But how many judges?

At the time of the drafting of the US Constitution, the life expectancy was about 40 years. The average tenure of a judicial appointment was 16 years. Thus at the time of nomination, any appointment even if it was intended to be for a limited time, was effectively a lifetime appointment. But there is a difference between a lifetime appointment and an infinite appointment. A fixed term, even if it is a very long term, makes it clear that a judicial appointment is NOT an infinite appointment.

The nomination clause in the constitution is for ambassadors and other officials that are expected to serve during the term of the President. But it also covers judicial nominations for the Supreme Court and every federal judgeship, and those by custom, are lifetime appointments. However it is only by custom. It appears to be constitutionally allowable to set a very long term on those appointments so that it is clear that they are not infinite appointments. The sovereign of the US is its People which of course has a lifetime longer than that of any judge. The term of any federal judge should be for a fixed number of years so that we do not get into "Après nous, le déluge" situations where judges accidentally forget that their appointment is NOT forever, and forever is longer than their life.

Any federal judge (with the exception of Justices of Supreme Court, which will be discussed later), who has served longer 16 years would have an expired term. When a previously appointed judge reaches a date of 16 years of service, their appointment should expire. Any new judges should  serve only for a term of 16 years.

A majority can be the will of the larger group, or just a random decision. To be certain that it reflects the will of the United States, which is a normal distribution, it should be expected to also follow the 68/95/99 rule. That is, a decision which has a certainty that 68% of the outcomes fall between the mean and one Standard Deviation; 95% of the outcomes fall between the mean and 2 standard deviations; and 99% of the outcomes (actually 99.97%) of the outcomes fall between the mean and 3 standard deviations.

The standard deviation of a normal distribution is approximately the mean divided by three. On any normal panel, the mean is 50% of the panel size. For an even number panel this mean will be an integer. For an odd number panel this mean will NOT be an integer. The standard deviation is 16.67% of the panel size. The certainty of a decision can be specified as the ratio of the size of the votes on the panel divided by the mean of the panel. For example, a 4-3 decision has a Z-score, the ratio of the decision to the mean of the panel, of 4/3.5, 1.14, is 87% certain, which means that it is more certain than a one judge decision which can only have a 50% certainty..

It is suggested that an appeal process should require a decision that INCREASES certainty. A decision that is no more certain than the original decision does not improve the certainty of the decision. The judicial process should also reflect CERTAINTY, not DOMINANCE. To make this clear, the Supreme Court should have an even number of justices so clearly a split SCOTUS does not, can not, ever reflect dominance. It is suggested that SCOTUS should have at least 10 members.  The reason is two fold.  If the court were to have 8 members it would require the removal of an existing justice, while 10 members could be achieved by adding a new justice.  Additionally, to be certain rather than dominant, decisions should  follow the 69/95/99 rule.  That is 68% of 8 members is 5.48 which would ordinarily be rounded down, become less certain, while 68% of 10 members would be 6.8 , which would round up to 7 and thus increase certainty.

It should  be required that neither the Supreme Court nor any appeals panel should require unanimous decisions. Otherwise, a single member could block the decisions of the group and that power should not be vested in a single individual.

An even number of members on the Supreme Court might sound strange but it is noted that the size of the SCOTUS was 6 members at the founding of the United States, was 10 members during the presidency of Abraham Lincoln and recently the size of the court was only 8 living members from the death of Antonin Scalia to the swearing in of Neil Gorsuch, a period of 14 months.  The most important decisions of the United States require a 2/3, almost a One Standard Deviation, 68%, vote. It is suggested that Supreme Court decisions should require at least 68% of its members to be binding.  For a 10 member court, this would be at least 7 members..

An even number of members of the Supreme Court of 10 would require increasing the size of the current bench by one Justice. The 16-year term, if implemented immediately, would give the next president the ability to nominate one plus every member who has served more than 16 years. Instead, it is proposed that the terms of the  Supreme Court Justices be staggered, much like the Senate, and that one member’s term expire in every non-federal election year. Thus the first nomination, if this were enacted now, would not be until 2025 and it would be for the 10^th seat. In 2027, Justice Thomas’ term, who has been on the SCOTUS since 1991, would expire. This would continue until 2043 when Justice Jackson’s term would expire. Each newly nominated Justice would serve only a 16-year term. This would mean that a one term president would ordinarily only get to nominate two SCOTUS members (not including filling unexpired terms). A two-term president would ordinarily get to nominate 4 Justices to the court. Unless a political party controlled the Executive Branch for 14 years, it would not get to also have nominated the 7 members needed for a binding decision ( 50% + one standard deviation). During the transition to 16 year terms,  in 2041 and 2043  the term of two justices rather than one would expire.  Since these years would occur during the term of a single president, it is suggested that the first term of the 10th justice nominated in 2025 should be for 20 years.

It is noted that a unanimous 12 member jury (an even integer!), is only 2 out of 4096 possible jury outcomes. ( An even split jury, a 6 to 6 vote, is 924 out of 4096, or 22.56%). This means that a unanimous jury with a Guilty verdict has a 99.98% (1 of 4096, the other unanimous outcome being a Not Guilty verdict) certainty of being correct, unless the evidence is false or the jury was tainted, which would mean that the Guilty jury verdict was only a false positive. To remedy any false positives, all jury decisions should be reversible. Since the death penalty is NOT reversible, it would not appear to ever be an appropriate judicial decision.