Tuesday, September 22, 2020

3 Reforms To SCOTUS That Could Save Our Democracy — Tenure Limits, Appointment Limits, And A National Referendum

THE PASSING OF Supreme Court Justice Ruth Bader Ginsburg, and the subsequent battle that is being set up as a result, is a consequence of a failed system that demonstrates how, in recent years, we've made an institution that shouldn't be political into just that.

With Sen. Mitt Romney's (R-Utah) announcement on Tuesday that he will support the nomination process for a new justice ahead of the presidential election — bucking the precedent that was set by Mitch McConnell and other Republicans in 2016 when former President Barack Obama had sought to name Judge Merrick Garland to the High Court — there's a high possibility that a "lame duck" appointment by current President Donald Trump will be named to the Supreme Court, likely after he has lost the presidential race itself in November.

If that happens, many Democrats will make pleas to "pack the court" after Joe Biden gets sworn in, assuming he does indeed win the election; and, given the highly-partisan nature of how things have been over the past decade or so, it's likely the movement to do so will gain traction.

My big fear over this move is that it could lead, generations from now, to a Supreme Court with 20 or 30 justices sitting on it, after each new president decides they don't like what the previous president has done, and chooses to add more seats to the bench rather than abide by the rules our nation has previously gone with.

If Biden does indeed agree with calls to add two more justices to the court, he should do so with a solemn promise: that he won't appoint more justices as vacancies happen. In other words, if he adds two to the court (for 11 justices total), he will allow that number to go back to nine, without adding new justices as vacancies occur.

But that action only addresses one problem: the fact that Trump was able to steal two Supreme Court nominations during his tenure — the first being what was supposed to be Obama's nominee in 2016 (rolling over into 2017 when Trump was inaugurated), the second being whatever this impending appointment will be, which thwarted the precedent set before (Brett Kavanaugh's appointment, while I strongly opposed it, was, at the very least, a "legitimate" action to fill a seat on the Supreme Court by this current president).

A series of other reforms need to be enacted beyond whatever action Biden takes immediately after taking office. The High Court, simply put, needs rules to ensure that, if we're going to treat it as a political institution as we are now, it cannot abuse its power, just as other political institutions are limited from doing.

Here are three quick reforms I can think of:

  • Tenure limits of 14 (or 18) years for each justice. The exact number of years isn't the point here, so much as the idea that justices shouldn't serve lifetime appointments. This shouldn't necessarily restrict justices from serving longer periods of time, but would require presidents to re-nominate them if they want to keep them on the court. Tenure limits would ensure that the Supreme Court adjusts to societal changes in a more timely fashion, while also creating a schedule for voters to know when a presidential election will have an effect on a "known" vacancy that is set to occur.

  • An appointment limit for presidents. Under this reform, presidents would only be allowed to fill two vacancies per presidential term. Exceptions could be allowed if less than five justices are on the bench as a result of a new vacancy, or if two-thirds of the Senate votes to affirm a president's request to add another justice to the bench, for example.

  • A national referendum on "close" picks. This reform might be the trickiest one to sell, but it would give the court a lot more legitimacy, especially for those appointments that cause social media to explode with outrage. Supreme Court justices who are confirmed by a margin of less than 55 votes in the Senate are, by their very slim nature of being approved, inherently partisan picks. So, when less than 11 in 20 Senators vote to confirm a president's pick, a "yes-or-no" vote across the nation should be triggered, to allow the people to approve or deny a contested justice pick in an up-or-down vote. This should only happen in certain circumstances, however — perhaps when such a situation occurs, it could require a vote in the House of Representatives first, or a majority of state governors have to support it, etc. before a national referendum happens.

It's not likely that any of these reforms could come easily. But some of them might not require a constitutional amendment — Article III of the Constitution does not limit any of these reforms from being possible. Congress has the power to regulate aspects of the High Court, which it has done in the past

If we want the Supreme Court to work — and, what's more, if we want to ensure our entire system doesn't fall apart due to the death or retirement of a single justice — these reforms are a good place to start, or at least begin a conversation, over how we can prevent such outcomes. 

The present situation in Washington D.C. is exposing fissures in our system of governance, and if we do not address them, they could create real crises for our country in the years ahead.

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