RESTRICT JUSTICES TO 18-YEAR TERM
First post-Scalia deadlock shows our broken system needs to change
The stakes in the pitched battle over Judge Merrick Garland’s nomination to the Supreme Court became clear this week with the first deadlock since Justice Antonin Scalia’s death left an eight-member court. There is only one way to stop this political dysfunction: End life tenure for justices. The founders wanted to ensure judicial independence. But the court has changed since 1789, and the stakes for the country are much higher.
First, life expectancy has increased by more than 30 years since the 1780s. Over the court’s history, justices have served an average of 16 years. But now they routinely serve 25 years or more.
Justice Scalia wrote that “a system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Justices are unelected for good reason. Even so, the problems of democratic legitimacy and lack of accountability increase when justices decide cases a quarter-century after their appointment. About 40% of Americans were not even born when President Reagan nominated Scalia 30 years ago.
POWER AND POLARIZATION Second, the court has much greater power than it did in the 18th century. Today, the Supreme Court gives the final word on virtually every major public policy issue: gay marriage, money in politics, the Affordable Care Act, abortion, guns, the death penalty and, in the case of Bush v. Gore, who won the presidency.
The court is also more polarized along partisan lines than ever. For the first time, all the Republican appointees are consistently more conservative than all the Democratic appointees. This is no accident but rather the result of the careful selection of nominees by both parties since Reagan. They are focused on the court, and it shows.
Finally, it is no secret that justices retire when presidents of similar ideological bent are in power. Sandra Day O’Connor retired when President George W. Bush was in office, John Paul Stevens and David Souter during President Obama’s tenure. These strategic retirements are meant to perpetuate the judicial ideology of the retiring justice.
The politicized hysteria surrounding Scalia’s replacement was all but inevitable given the court’s immense power, the many decades the justices now sit on the court, the phenomenon of strategic retirement and the increasing polarization of the parties, the court and the country. One change of justice today can swing the court for an entire generation. This time, it might even create a constitutional crisis.
THERE IS ANOTHER WAY We should amend the Constitution to require that each justice be appointed for a single, staggered 18-year term. Every two years, on Aug. 1 in the first and third years of a presidential term, one justice will be replaced. Should a justice’s term end early for any reason (such as death or retirement), the president can nominate a replacement, but only for the rest of that term.
This system will minimize, if not eliminate, strategic retirements. It will guarantee that in any given presidential term, the president will nominate two justices. Finally, any justice nominated by the president should be confirmed unless the Senate rejects the nominee by majority vote within 60 days. This will end the stonewalling of nominees and virtually guarantee an up or down majority vote.
This constitutional amendment should dramatically reduce the ideological temperature during nomination season. It gives clarity, transparency and certainty to the court and the public. It gives every president and Senate an equal opportunity to shape the court, which will make the court more accountable to our democracy. It is fair.
A single 18-year term will not sacrifice judicial independence. Ineligible for a second term, justices will not be beholden to politicians. Most justices will retire with a guaranteed lifetime salary or continue to serve on lower appellate courts. Even the few justices who return to private practice should not be influenced by private ambition: Almost any law firm or law school would readily hire any justice simply for the prestige. In any event, justices today can already leave the court and join the private sector.
We know how long presidents and Congress will serve. But the fate of affirmative action, the labor movement, immigration policy and potentially a generation of jurisprudence can turn today on whether and when one justice chokes on a pretzel.
We can end this absurd state of affairs. It is time to end life tenure on the Supreme Court.