This week, President Joe Biden’s Commission on the Supreme Court of the United States adopted a report. It is thorough and thoughtful. It does not, however, recommend a single reform to address the legitimacy crisis engulfing the nation’s highest court. At a time when democracy is under assault from many flanks, the only way for us to survive this trial is for the public to have confidence in its institutions — and the Supreme Court is top among them.
The Supreme Court plays an outsized role in our democracy. Who sits on the high court has become a question that looms so large that it sways presidential elections. It is an institution that — with the vote of just five people — can give or take away rights of millions of individuals. Its decision-makers are small in number and have their jobs for life. Reasonable people would look at this situation and see it for what it is: deeply worrisome and undemocratic.
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Certainly, the legitimacy crisis is not all of the court’s making. The current system creates many incentives for partisans to control the composition of the courts to further political and policy objectives long past their time in elected office. As a result, controlling the selection of federal judges, and especially justices, has become one of the biggest prizes in U.S. politics.
Given this reality, Americans deserve better than a milquetoast report by presidential commissioners who can barely agree that there is a problem worth solving, let alone what the solutions should be. Indeed, former federal appellate judge and commissioner Thomas Griffith stated that the legitimacy crisis was not emanating from the conduct of justices who have their positions for life. Nor did he blame the Senate, which in our view has ratcheted up judicial confirmation warfare with every congressional session. No, the problem, according to Griffith, is describing the court as having a legitimacy problem to begin with. Is this what Biden intended when he gave the group a mandate merely to discuss the pros and cons of reforms?
This view is antithetical to common sense and flies in the face of the experience of any person whose rights have had to be announced (or have been denounced) by the court — women, Black people, gay people, and children to name a few. Or anyone who has watched aghast as the Senate races to the bottom in the name of getting a Supreme Court justice confirmed (or stymied confirmation) at all costs.
POGO’s task force of former judges and experts spent over a year looking at some of the very same issues and this summer came away with an important, commonsense, and inescapable conclusion: If our democracy is to endure, we must change the incentives that lead policymakers to capture control of the court in their zeal to capture its decision-making.
One of those incentives is the length of justices’ tenure. The Supreme Court is an institution where too few people hold too much power for too long. It makes little sense for any person to hold power for life in a democracy. And the Supreme Court is the only institution in our government that confers such absolute power on such a small group of people.
The justices’ long yet unpredictable tenures on the court produce enormous partisan pressure whenever a vacancy arises, whether by death or retirement. The current practice leaves the timing of departure to a justice, and it is evident that justices consider which president will appoint a successor. This system also disincentivizes the appointment of older candidates who may have broader or deeper experience than a younger candidate who has a better chance of serving a long term. And the inherent unpredictability of the current system has contributed to a significantly uneven number of appointments by presidents from one party over the past 60 years. Despite a relatively even number of years that Republicans and Democrats have occupied the White House during that time, Republicans appointed 70% of the confirmed justices.
Term limits are the best way to address this. They are one of the few reforms that democratize judicial selection while preserving the independence of the courts. This is not a conservative or liberal idea, and every modern democracy imposes some limits on how long judges on constitutional courts can serve. Even in the U.S., 49 states impose limits, rejecting the notion of judges having lifetime positions.
But term limits are not the only necessary reform. Unlike the other branches of our government, which have responded to changing societal needs and advancements, the Supreme Court’s structure has been virtually unchanged since the founding of the republic. This moment doesn’t call just for small, technical changes to reform the court, like addressing the court’s near-total authority not only to decide the cases before it but also to decide which cases it will hear in the first place. It also calls for bold moves, like expanding the court so that it can sit in panels to hear cases — rather than as a full bench every time — which would create randomization among the personnel who sit on any given case. These types of reforms would reduce the power of any single position on the court and thus turn down the temperature on the judicial confirmation process.
The only way to ensure the legitimacy of this vital institution is to diffuse the justices’ power and make the Supreme Court a little less worth fighting over. The greatest danger of the presidential commission’s report is that it could entrench the notion that such change is impossible. The ball is now in Biden’s court to ensure that doesn’t happen.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.