The U.S. Supreme Court is broken. The Presidential Commission on the Supreme Court last week released draft discussion material that discounted one much-debated idea for fixing it — expanding the court’s size — but took a more positive stance on the idea of term limits for justices. If done right, that could well take the heat out of these occasional, unpredictable and destructive partisan battles over filling vacancies.
The high court is supposed to be above the partisan political squabbles of the moment. It clearly isn’t. In the more than two decades since the court split along partisan lines in Bush v. Gore to end Florida’s vote recount and hand the presidency to George W. Bush, the court has only become more blatantly partisan.
The most recent evidence was in the decision by the court’s conservative majority to let Texas’ bizarre, bounty-hunting anti-abortion law go into effect even though challenges to that law are still playing out. It was such a legally indefensible decision under the circumstances that even generally conservative Chief Justice John Roberts balked. That conservative justices and their supporters have felt compelled to give speeches lately denying they are partisan hacks creates the distinct impression of protesting too much.
A primary source of political-hack imagery is Senate Republican leader Mitch McConnell, with his shameless theft of not one but two court seats by making up (and then reversing) Senate confirmation rules as he went along. But the issue goes beyond McConnell. Political cage matches over court seats are standard today because the justices’ lifetime tenure makes each seat a precious commodity in a deeply divided country. This spurs unseemly but politically necessary calls for “strategic retirement” of older justices (such as, ahem, Justice Stephen Breyer).
Expanding the court to dilute McConnell’s damage might feel like, well, justice. But as the commission’s report notes, it could make the court appear even less legitimate than it currently looks to the party out of power, while risking “a continuous cycle of future expansions” with each new majority in Congress.
Term limits, on the other hand, could give both parties equal opportunities to affect the court and make each confirmation process a simple, predictable calendar item. One common suggestion is an 18-year term, staggered for each seat, with a new justice appointed every two years.
Critics note that 18 years is still an eternity in politics, opening the possibility that instead of tamping down these occasional confirmation fights to the political death, it would just make them more frequent, while shorter terms could diminish the continuity of the court’s decisions. Those are valid concerns that should be part of the discussion, but there should be a discussion. The status quo — a high court that is neither reflective of America’s values nor objective on matters of law — is no longer acceptable.
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