Change system for selecting Supreme Court

The Constitution says nothing about the number of Supreme Court justices, nor does it give justices lifetime appointments.

Congress has always had the power to legislate both number and term. The Judiciary Act of 1789 created a court with six justices, and then changed the number to seven in 1807, nine in 1837 and 10 in 1863.

The current scheme — nine lifetime appointments — is a direct cause of the court’s decline in popular esteem. It places far too much power in the hands of one person — the president (or two, if you include the Senate majority leader). It has turned the composition of the Supreme Court into a game of chance in which a president who has not won a popular majority might, if he is lucky, picks one-third of the justices for the next 30 years.

Justice should not be determined by luck. In a government of laws, not men, one man should not have such arbitrary power over our highest court.

A new judiciary act creating staggered 18-year terms for 15 Justices would guarantee every president the right to nominate (and have a hearing for) three openings on the court. In 2021 and 2025 the future presidents would nominate three new justices. The court would expand to 12 in 2021 and 15 in 2025. In 2029, the three longest serving lifetime justices would be replaced by three new 18-year justices. In 2033 and 2037 the remaining six lifetime justices would be similarly replaced.

It is true that if a justice died on the court, the president in office at the time would still enjoy an extra opportunity to nominate a replacement, but with 15 justices in total, the impact of a single justice would be less.

Reducing the impact of random events (such as death) on the composition of the court would restore people’s faith in impartial, apolitical justice.

— Christian Wijnberg,

San Anselmo