End life­time terms for the Supreme Court

Los Angeles Times - - OP-ED - By Gabe Roth Gabe Roth is ex­ec­u­tive di­rec­tor of Fix the Court, a na­tional non­profit that ad­vo­cates for a more open and ac­count­able U.S. Supreme Court.

In the third sea­son of “House of Cards,” con­niv­ing Pres­i­dent Frank Un­der­wood col­ludes with U.S. Supreme Court Jus­tice Robert Ja­cobs on the tim­ing of Ja­cobs’ re­tire­ment. Their plan: to have the jus­tice step down be­fore his Alzheimer’s dis­ease be­comes per­cep­ti­ble and be­fore Un­der­wood leaves of­fice, but only af­ter Un­der­wood gets a con­tro­ver­sial — and po­ten­tially un­con­sti­tu­tional — pro­gram up and run­ning.

“House of Cards” is ob­vi­ously fic­tion, but the sce­nario is plau­si­ble. There is a real risk that par­ti­san pol­i­tics could af­fect the tim­ing of res­ig­na­tions, which is just one of sev­eral rea­sons why un­lim­ited, un­struc­tured Supreme Court terms don’t make sense.

Although the founders quite rea­son­ably set­tled on life­time ap­point­ments to shield jus­tices from ever-shift­ing po­lit­i­cal winds, they did not an­tic­i­pate just how long jus­tices would sit on the bench. The av­er­age Supreme Court ten­ure has jumped from less than 15 years be­fore 1970 to more than 26 years to­day, as av­er­age life ex­pectan­cies have gone up and as pres­i­dents have looked to nom­i­nate younger jus­tices.

Jus­tice Clarence Thomas was 43 when he was con­firmed in 1991. If he re­mains on the court un­til he is 90, the age at which Jus­tice John Paul Stevens re­tired, he will have served 47 years — far too long for any one in­di­vid­ual to in­flu­ence so many high­stakes de­ci­sions. Re­cent nom­i­nees John G. Roberts Jr. and Elena Ka­gan were both only 50 at the time of their ap­point­ments.

Another prob­lem is that va­can­cies and nom­i­na­tions oc­cur spo­rad­i­cally and un­pre­dictably. Richard Nixon had four va­can­cies to fill in his first two years as pres­i­dent, while Jimmy Carter had none in his four years.

Fi­nally, life­time ap­point­ments may en­cour­age jus­tices to game the tim­ing of their re­tire­ments, as in “House of Cards.” Some com­men­ta­tors have called on Jus­tice Ruth Bader Gins­burg to re­tire, not be­cause she has al­ready served on the high court for 22 years, or be­cause she is 82 years old, but be­cause, as was re­cently noted in the New Re­pub­lic, “she is cur­rently serv­ing in the sixth year of a Demo­cratic pres­i­den­tial term, with no guar­an­tee of who the next pres­i­dent will be” — a naked par­ti­san ap­peal.

If life­time ap­point­ments are a bad idea, what’s a bet­ter one? Stan­dard­ized, 18-year, non­re­new­able terms for Supreme Court jus­tices would be ideal.

Even the most ar­dent de­fend­ers of ex­tended tenures on the high court should be sat­is­fied with 18 long years on the bench.

And be­cause there are nine jus­tices, ap­point­ments could — in time — be spaced out evenly: one ev­ery two years. This change would lower the tem­per­a­ture of con­fir­ma­tion hear­ings and end the pos­si­bil­ity that one pres­i­dent would get to ap­point al­most half the court, with the next ap­point­ing no one.

Amer­i­can vot­ers are in­creas­ingly wary of the Supreme Court. In 2000, a Gallup poll found that just 29% of Amer­i­cans dis­ap­proved of the way the court was han­dling its job. In 2014, 48% dis­ap­proved.

Another poll, com­mis­sioned by an ad­vo­cacy or­ga­ni­za­tion I run called Fix the Court, sug­gests why Amer­i­cans are dis­pleased. Harstad Strate­gic Re­search found that 3 in 4 re­spon­dents — all pri­mary vot­ers — think the court is do­ing a poor job of stay­ing in­de­pen­dent from pol­i­tics. Two-thirds, in­clud­ing clear ma­jori­ties from both par­ties, sup­port 18year stan­dard terms for jus­tices.

Switch­ing to a new sys­tem would take time, but there are steps we can take now, such as call­ing for the next high court nom­i­nee to pledge to serve a sin­gle 18-year term. A vol­un­tary pledge would bring needed at­ten­tion to the is­sue and have an im­me­di­ate ef­fect on the cul­ture of the court — an im­por­tant mo­ment for a body that re­spects prece­dent.

Although we haven’t made a sig­nif­i­cant change to the high court since 1869 — when we de­cided that nine was the num­ber of jus­tices that should sit on the bench — the United States has a proud tra­di­tion of scru­ti­niz­ing old in­sti­tu­tions and mak­ing the nec­es­sary changes to en­sure that all parts of gov­ern­ment up­hold demo­cratic prin­ci­ples.

Fu­ture nom­i­nees who agree to serve a sin­gle term of 18 years would be de­mon­strat­ing to the Amer­i­can peo­ple their com­mit­ment to mov­ing the Supreme Court for­ward and to mak­ing the in­sti­tu­tion more in­de­pen­dent from par­ti­san pol­i­tics.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.