How Can We Fix The Supreme Court?
The Supreme Court has become a hotbed of partisanship and dysfunction, but there are some simple ways to fix it.
The Supreme Court is the final court of appeals, the head of the judicial branch, and in many ways gets the final say in law. After Congress and the President wrangle over a bill and eventually pass it, people have the ability to challenge it in court, and it’s ultimately up to the Supreme Court to decide if it stands or not, and if it does, what form it takes.
Given how powerful the court is, we have to ensure that it’s being run fairly, and right now it isn’t.
One of the biggest tenants of the Supreme Court is that it’s meant to be an apolitical body that puts the law over partisanship, but the Court has shown itself to be overtly partisan. The Court has intervened many times to answer political questions, like on Trump’s Muslim ban or gay marriage, and when analyzed, the votes of the Justices are clearly based on their personal values and beliefs, not the law.
There’s also the fact that Justices get life terms. This is meant to make them independent and put them above party politics, but it also removes any accountability after they’re confirmed and ignores that Justices are nominated by a partisan President and confirmed by a partisan Senate, making it very easy for partisanship to leak in.
To address these problems, some politicians have put forward proposals to reform the Supreme Court, but they’ve had trouble catching on. One example is South Bend Mayor Pete Buttigieg, who proposed expanding the Supreme Court to 15 members, with 5 liberal Justices and 5 conservative Justices, and the last 5 being selected by the liberal and conservative Justices together.
This solution has been criticized as likely to exacerbate the existing problems in the Supreme Court, and it likely will. It would mean that 10 Justices would be concretely labeled as partisan, and for the final third of the Court, we would have no say in their selection as the rest of the Supreme Court would pick them.
Although the current proposals are flawed, there are a few ideas we could adopt to make the Supreme Court less partisan and more accountable to the people than it currently is.
The first would be changing how Justices are confirmed.
A major source of partisanship on the Court is the confirmation process, where Justices are appointed by the President and confirmed by the Senate. The President and the Senate are entities looking to advance their party’s agenda, which makes it difficult for them to select and evaluate a Supreme Court nominee in a nonpartisan way.
Recent confirmations, like that of Justice Brett Kavanaugh, have turned into circuses thanks to this, and the best way to remove partisanship from the Court would be to take confirmation powers away from them.
A simple solution would be to create a nonpartisan government council to nominate and confirm Justices. This council, as it wouldn’t be motivated by partisanship, would be able to look at Supreme Court nominees more objectively, and judge them on their most important qualities, such as experience and integrity.
This council could also do circuit courts, as the federal government is able to appoint judges to those courts and currently the same confirmation process is used there as with the Supreme Court, resulting in similar problems.
This solution would be hard to implement, as the Senate and President would have to agree to take the power of appointing judges away from themselves, but it would also mean a more objective and effective confirmation process.
Another solution, which has been suggested before, is to give Supreme Court Justices term limits.
We could require them to retire at a certain age, maybe 75 or 80, which is already quite common for judges in other courts. This would still give them a lengthy term on the bench, but it might cut down on the number of Justices who serve seemingly forever.
We could also try using retention votes.
With many local judges, it’s common for them to serve a 10 year term, and once that term expires, they go back to the public for a retention vote. This simply means the people vote yes or no on whether or not the judge gets to keep their seat.
The length of their term still allows them to remain above party politics, but the public vote gives them some accountability, and allows for their removal if they choose to abuse their power.
You could do a similar kind of retention vote with Supreme Court Justices.
Justices could have reconfirmation in the Senate every so often, or they could go up for a vote of the people. Either way, this would allow for the voice of the public to have a presence in the Court, and it would prevent one lucky President from being above to appoint 4+ judges to the Supreme Court and change it for generations.
The nice thing about instituting term limits, and something that’s unique to them, is that they wouldn’t require a constitutional amendment.
Despite what Justice Ruth Bader Ginsburg recently claimed about life terms for Supreme Court Justices being in the Constitution, there is no mention of that. The only discussion of the terms of Justices in the Constitution is in Article 3, Section 1, which states:
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”
Nowhere there does it specify a life term. It only says that Justices are in office during “good behavior”, and since that doesn’t set a specific term limit, we’ve interpreted it to mean a life term.
However, that isn’t how it needs to be taken, and changing our interpretation of the Constitution doesn’t require an amendment. By a simple majority, Congress could introduce bills to instate retention votes on Supreme Court Justices, and it wouldn’t violate the Constitution.
In fact, retention votes by the Senate or the people could be justified as enforcing the Constitution, since having accountability for the Justices would guarantee that they only held their offices during good behavior, and could be removed if they weren’t.
Obviously, the route to Supreme Court reform isn’t clear cut — there are a ton of options, and the ones listed above just address confirmation and term limits. There are plenty of other ideas, like expanding the Court’s membership, allowing cameras in the Court or even giving Congress the power to overturn their decisions.
When it comes to the original purpose of the Court however, all of our reforms should aim at achieving that. We should do everything we can to make the Court nonpartisan and law centered, and the best places to start are the places where partisanship is currently finding its way in. Whether it’s changing who confirms the Justices or allowing the people to hold them accountable, adding these checks will allow for us to make sure the highest Court in the land can fulfill its constitutional duty.
