Opinion – Ezra Klein: Limiting term could combat polarization in the US Supreme Court


Towards the end of the run-up to the 2020 presidential election, as Senate Republican leader Mitch McConnell raced to replace Justice Ruth Bader Ginsburg with Amy Coney Barrett, the left began to pressure Joe Biden to support the addition of seats. to the Supreme Court.

Biden responded by doing what politicians do when faced with an issue they don’t want to think about: He promised to create a commission to look into the case.

That commission presented its report in December 2021 and, as far as I know, Biden’s disinterest has been confirmed. Despite all the fury in the Supreme Court in recent weeks, the administration appears not to have mentioned the report or any of the options it raised. Perhaps this is just an admission of political reality. Democrats don’t have enough votes to change the court.

But the Biden administration needs to change the political reality, not just accept it. The danger Democrats will face in November is hopelessness and apathy at their base. Why vote if nothing will pass anyway, and if the Supreme Court is going to eliminate everything that escapes the Republican blockade?

Democrats need to give their base something to vote for. One such response could be a plan to repair the court – one that goes beyond restoring Roe v Wade and demonstrates a deeper vision for reimagining the US political system in a time of crisis. That may take years or decades, but if progressives need inspiration, they can look to the decades-long effort the right put together to topple Roe.

The commission’s report does not endorse any specific plan. Instead, over nearly 300 pages, it considers various plans and lays out the arguments for and against them.

I won’t try to summarize it here. Instead, I’ll expose how he left me, as a reader, thinking about court reform. (Others, including the commissioners who produced the report, came to different and contradictory conclusions, which is testament to the impartiality and breadth on which the report is based.)

In Federalist Papers No. 78, Alexander Hamilton wrote that the Judiciary “has no influence over sword or purse; no directing of the strength or wealth of society; and can make no active resolution. judgment”.

The debate over the Supreme Court tends to revolve around the word “legitimacy.” The fear is that the court will lose its legitimacy, whatever that means. But the word Hamilton uses is more interesting: “judgment.”

I think the problem with the current Supreme Court is that there is no reason to trust its judgment, and there are many reasons to be suspicious. The nominee selection process is completely politicized. The process by which chairs are opened and the courtroom is renewed is thoroughly politicized, except when death interferes with a judge’s preferred time to retire. Critical cases are often decided in partisan polls, confounding the idea that the court speaks as an institution, in the name of the Constitution, rather than as nine ideologically predictable political appointees.

The court – like the rest of the American political system – was not created for an era of polarized political parties. It is supposed to be a control over the other Powers, not an amplifier of the power that the parties exercise over them. Your problem is a mismatch between the political system it was designed for and the system we actually have. So the question is: what would the courthouse look like if it were designed for this time? What reforms would make the court’s judgment more credible?

In my opinion, the court enlargement, the idea that possibly launched the commission, fails this test. It’s not because adding judges would be a radical departure from previous practice. Adding and removing judges was common practice in the 1800s, partly as a way of managing the court’s workload and partly as a way of controlling it.

But you can’t fix the courthouse by adding judges. It would shift the balance of power by contributing to the fundamental problem, turning the courthouse into an untrustworthy institution and triggering a cycle of reprisals with unknown consequences. If the Democrats manage to pass a bill that adds judges, the Republicans would match or exceed them once they are restored to power, and so on. For a solution to hold, it needs to be defensible beyond this moment in American politics. Many other ideas pass this test.

Let’s start with the easiest: term limits. Lifetime appointment did not mean, for most of American history, what it does today. The commission notes that, until the 1960s, the average length of service at court was 15 years. Today it is 26 — and perhaps it will increase. As the partisan stakes on Supreme Court nominations have sharpened, life expectancy has become yet another variable in the game: parties are looking for the youngest judges they can credibly pick to ensure their nominees retain power in the future.

Worse, as judges strategically retire, power in the courtroom today builds power further down the line. As the commission notes, Donald Trump “appointed three judges in his only four-year term; his immediate Democratic predecessors, Presidents Barack Obama, Bill Clinton and Jimmy Carter, made just four appointments in 20 years combined.” Lifetime appointments were intended to insulate judges from politics. Instead, they became a promoter of court politicization.

Limiting judges to 18-year terms has garnered a fair amount of bipartisan support over the years. Rick Perry, the former governor of Texas, proposed this in his 2012 presidential campaign. The commission notes that when the National Constitutional Center convened separate groups of liberal and conservative jurists to consider court reform, both ended up proposing mandates of 18 years. This also relies on the strength of international practice.

Term limits can be thought of as a kind of healthy politicization of the court, designed to combat its unhealthy politicization. 18-year terms would, over time, mean that presidents could make two nominations per term. A two-term presidency would have four nominations — not quite a majority on the court, but enough to ensure he doesn’t get too out of step with the American populace. It would also lower the stakes on any vacancy or any decision, because vacancies would become predictable and commonplace.

But there is also a need to depoliticize the court and protect it from politics. It now seems unlikely that vacant seats can be filled when the White House and Senate are controlled by opposing parties, raising the possibility of long periods of time when the court is understaffed. (McConnell has already said that it is “highly unlikely” that he will let Biden fill a Supreme Court seat if Republicans retake the Senate in 2022.)

But the commission has an interesting idea for this. If the Senate is unable to influence or confirm two Supreme Court nominees within a certain period of time, the impasse could trigger a new process in which the chief justices of the federal Courts of Appeals would vote for the next nominee. It’s not a perfect solution, and the details would need to be worked out, but at least it strengthens the case somewhat against protracted partisan obstruction.

More radical is the idea of ​​a “balanced bench”. The commission doesn’t discuss this idea in detail, except primarily to criticize, but I think it’s worth considering. The balanced bench is a proposal by Daniel Epps and Ganesh Sitaraman, both law professors, to split Supreme Court seats in a new way: both parties would have five justices, and then those ten would be called to agree, unanimously or nearly , about five more.

The merits of the balanced bench proposal are perfectly, if accidentally, summed up in the commission’s critique of the idea.

“An explicit requirement that judges be affiliated with specific parties would narrow the pool of possible candidates and reinforce the notion that judges are partisan actors. Even accepting the fact that justices’ judgments have political implications and ideological motivations, this identification close proximity to ministers with political parties could undermine the perception of judicial independence, which is important for the acceptance and enforcement of court decisions.”

Yes, it would be a shame to reinforce the accurate perception that Supreme Court nominees, chosen by political parties, widely scrutinized for ideological reliability, may be, at some level, partisan actors. The second sentence is even more extraordinary: even if it is true that ministers have “ideological motivations”, we must act as if it were not true, as an accurate understanding of the judiciary can harm “the acceptance and compliance” of their decisions.

This is an argument for denial, when we need agreement. In fairness to the commission, denying the central role that parties play in the US political system is a respected tradition.

The US is today ambivalent about its parties. The founders did not foresee them, although they created them. George Washington’s farewell speech is famous for its attack on parties, even though it is, in reality, an intervention on behalf of nascent Federalists. Today, record numbers of Americans identify as independents, even if they are more predictably partisan in their electoral behavior than at any other time in American history.

A central issue in any political system is how to balance power so that all sides have a stake in the system’s continued success. The problem with our system is that we are balancing the power of seats rather than parties.

The idealists believed that the politics of states would structure our politics. “Many considerations […] seem to put beyond doubt that the first and most natural connection of the people will be to the government of their respective states,” wrote James Madison in Federalist No. 46. And so the Senate balances the power of the states equally, and the structure of the Electoral College and the Chamber gives the rural environment a boost in political representation.

But the idealizers were wrong. Political parties are our main political ties, and this has been true for decades. Perhaps the Supreme Court should be a place that balances their power rather than another means by which they vie for dominance.

We treat the creaky, cracked structure of American government with a strange mixture of admiration and fatalism; either we find it somewhat heretical to question it, or we are so pessimistic about the prospect of change that we are not even interested.

But to delve into the history of courtroom reform, as the commission does, is to remember that the Supreme Court was imagined by human minds and made and remade by human hands. We honored the idea of ​​the American experiment, but we lost the spirit of experimentation that made it work. We didn’t discover the ideal structure for the Supreme Court, once and for all, in 1869. Our forerunners did the best for the times in which they lived. It’s time for us to make our own.

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