A Revised Supreme Court
Following the recent 5-4 partisan vote against extending the Wisconsin presidential primary amidst the pandemic, talk of the politicization of the nation’s highest court has resurfaced. However, the same way partisan politics shouldn’t play a role in a global pandemic, political parties should have no place in the U.S. Supreme Court.
In 2016, Judge Merrick Garland, President Obama’s Supreme Court nomination known for his moderate political leanings, seemed a shoo-in to fill the vacancy on the Supreme Court left by Justice Antonin Scalia. That is, until Senate Majority Leader Mitch McConnell (R-KY) blocked the nomination in hopes of reserving the spot for a more conservative justice—apparent evidence of the court’s increased politicization.
Further demonstration of said politicization has escalated since Trump took office. So far, the sitting president has filled two Supreme Court seats—nominating Neil Gorsuch and Brett Kavanaugh. Along with Justice Clarence Thomas, the justices are considered three of the most conservative on the bench, shifting the balance of the court to the right, dangerously so—progressives say. With the possibility of restricted abortion rights and the addition of a citizenship question to the census looming, Americans recognize the consequences of such a skewed court.
Gabe Roth, executive director of Fix The Court, explained that “the vast majority of questions that are brought to the court that have some sort of political nature are decided along expected partisan lines.” Such a predictable reality raises fears that justices will hold their partisan leanings over the law. The courts are meant to assure our rights as Americans, not simply assure they side with the right (or left). Now, while not all cases develop along party lines, partisan leanings among justices clearly prevail— which is problematic for various reasons.
Some criticize the court as “anti-democratic” because justices aren’t elected by the people but rather appointed for life. Ashwin Phatak, Appellate Counsel at the Constitutional Accountability Center, recognizes that the Supreme Court’s “anti-democratic” nature exists as a “feature, not a bug” noting that justices are nominated rather than elected, insulating them from a partisan fight. However, Phatak, like several others, recognizes the flaws that come with our third branch of government. In 1896, Supreme Court case Plessy v. Ferguson set the “separate but equal” precedent that legally backed segregation. Although later overturned in 1954 by Brown v. Board of Education, it’s considered a stain on our country’s judicial past and proves the Supreme Court isn’t perfect.
Accordingly, court reform isn’t a new idea. In 1937, Franklin D. Roosevelt attempted, with his Judicial Procedures Reform Bill, to “pack” the courts and in 2018, following the contentious appointment of Brett Kavanaugh, similar proposals arose. Other plans include term limits varying from 18 to 24 years, guaranteeing each president a certain number of appointments to the Supreme Court once current justices retire and pass away.
Regardless of the specific plan, our nation’s highest court must be held to the highest standards and this blatant game of partisan politics on the bench fails to maintain those standards. As times change, legislation is expected to change and the current model of the Supreme Court doesn’t allow for that.
It’s widely recognized that our Supreme Court justices shouldn’t exist as “politicians in robes,” but in today’s world, that line increasingly blurs. Adam Liptak, lawyer and Supreme Court Correspondent for the New York Times, explains that the justices have become “the instruments of this politicization and chosen because of their perceived politics.” A dilemma arises as Supreme Court justices focus more on their political beliefs and, in turn, abandon or twist the law of the land in ways that serve their partisan bias.
The Framers intended to organize the Supreme Court in a way that stands independent of the other political branches of government and public opinion. Despite this, as Lucas Rodriguez, author at Stanford Politics points out: “never before has a court been as polarized as the Roberts’ Court is today.”
This being said, restricting the Supreme Court’s power can take various forms. The partisan power issue of the court stems from its unique assignment of life tenure. Today, the life tenure engrains its effect as justices serve forty to fifty years on the bench—a reality the Framers never imagined. Further, Liptak raises concern that justices risk “cognitive decline” as they age beyond retirement years. Brad Snyder, a law professor at Georgetown University, notes that justices are “hanging on into their 90’s” and waiting to retire at strategic times that may advance a president’s political agenda.
So how can we call this game of politics in our judiciary quits? While the answer stretches beyond restricting Supreme Court justices to 18-year term limits, it’s a smart start. The popular plan includes the term limits as well as assigning the role of Chief Justice to the most senior member on the court. Over time, once the plan evolves and the current justices retire and die, each president would enjoy the privilege of appointing two justices per 4-year presidential term.
Once these new justices conclude their term, stepping down to lower courts remains an option, along with simply retiring from the court. Many fear that justices may approach the term as a reelection campaign for further terms. However, without the possibility of reappointment, this political threat wouldn’t present a problem.
As Americans, it’s our responsibility to hold our government accountable—and this most certainly does not exclude the Supreme Court.