Clearly, we have a political partisan problem in the U.S. Supreme Court (SCOTUS) and faith in it is at an all-time low. Even before the highly controversial and unpopular overturning of Roe v Wade, politicians, many in the legal community and citizens have been calling for reform to SCOTUS – and for good reason.
As designed, SCOTUS and the judiciary is given coequal powers along with the executive (President) branch and Congress. SCOTUS’s power of establishing law by precedence, in essence, gives the current 9-member SCOTUS the power to uphold or strike down laws established by Congress that is made up of 100 senators, 435 representatives. And relative to the President that the entire nation will have the opportunity to elect, SCOTUS members receive zero direct votes by citizens.
Why should 9-members wield such awesome power yet have such a relatively easy process to be appointed and with no direct input from our citizenry, and further yet, receive a lifetime post? The reason ideally was designed in order for SCOTUS members to be immune to and above politics, that they would be free to conduct business without the pressures of partisanship.
But evidently, particularly of late, this has not been the case. With immensely consequential issues slated to be taken up by the high court – the second amendment, separation of church and state, first amendment’s scope in relation to the free press, etc. – it’s time for Congress to enact reforms to SCOTUS.
What we have now is SCOTUS having outsized power relative to the other branches which ultimately cannot be healthy for a functioning democracy.
Possible Changes to SCOTUS *Impose Term Limits on Justices. The selection process of justices has become a gaming system to maximize partisan politics. How? Lifetime appointments incentivize finding the youngest, most partisan jurist who can gain confirmation in order to ensure a bent on the Court for as long as possible. This is no secret and is evidently flawed.
The Framers of the Constitution adopted a life tenure because the average lifespan back then was typically shorter. Historically justices would serve around 15 years and would retire. Justices appointed in the 1970s served on average 26 years. Today, SCOTUS justices on average serve 40 years, and in some cases, will serve until close to or up to death.
Term limits allow for greater turnover where justices are more up-to-date with citizens’ values and not settle in their ivory tower out-of-touch with the realities of contemporary times.
Term limits will minimize the randomness of the court that results in situations where it is conservative heavy of liberal heavy, depending on who among the justices chooses to serve until death or retire. This randomness is why gaming the appointment and confirmation process has become too political, and the choices the President makes in choosing justices are also too political.
Congress must limit justices term to one that’s reasonable, possibly 15 years, or at most 20 years.
*Expand the court. The number of justices to comprise SCOTUS is not written in the Constitution and historically the number has been altered. To reduce the likelihood of a partisan heavy court as we see now, adding possibly four or more seats to SCOTUS must be considered. More seats should result in greater balance and independence.
*Limit number of President’s appointment. Donald Trump appointed 3 supreme court justices in his one-term tenure: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. It’s clear this paved the way for Roe’s overturn and the heavily partisan decisions this particular court is expected to rule on potentially for decades.
Again, given the immensely awesome power of SCOTUS without having direct involvement of citizen input by direct election, it’s inconceivable that we allow such randomness for one president to potentially appoint three justices and another president to appoint one or possibly none at all.
To prevent stacking of justices by one president, each president should be allowed to appoint no more than two justices. Of course, if a president is reelected that number caps at four.
Restore faith in SCOTUS Even before the overturn of Roe, only 25% of Americans say they have confidence in the Supreme Court, according to the latest Gallup Poll taken in June this year. That is historically the lowest level of confidence ever; and most likely, after Roe that percentage could drop lower.
For perspective, the lowest approval rating for even the most unpopular president in his most unpopular period in office has never sunk below 40%.
This dismal lack of confidence in SCOTUS is yet another sign why SCOTUS needs reform. Again, given that this is the third “coequal in power” branch of government, it’s unacceptable that a vast majority of Americans think so lowly of this institution.
The general public deserves better and the road to restoring faith and integrity in SCOTUS begins with some of these reforms above. Such reforms could lead to a more predictable court and one in touch with modern realities, an appointment process less fracturing and divisive, reduce the need for presidents to game the system and select partisan justices (but rather those more truly independent).
It’s rational, even common sense that changes are warranted. The political reality is that those who are contented with the current SCOTUS composition will resist reform (even though if the situation were reversed they’d most likely think differently).
Those wanting change to SCOTUS must vote in candidates who want changes. The signpost is clear. Vote in 2022! SCOTUS is on the ballot.
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