COLUMN: We can depoliticize the high court
Judicial reform is on the minds of many since the passing of the honorable Ruth Bader Ginsburg. What reforms make the most sense?
Oct. 20, 2020
Hirsh Joshi is a first-year law student at MU. He writes columns about government, race, politics and culture
With the unfortunate passing of Supreme Court Justice Ruth Bader Ginsburg, conversations about judicial reform are at the forefront. Some have suggested abolishing the Supreme Court. Others have been content with the potential collapse of democracy. Both of these extremes are impractical, with the former being incredibly unlikely.
For MU students who have never voted in a presidential election, the prospect of our democracy’s collapse is a rather poor introduction to our most important civic duty. It might be even scarier for international students who may not have a vote to protect themselves.
Reform is needed. The idea that the fate of American democracy can lean on the health of an 87-year-old woman should signal a problem. President Donald Trump has already moved to fill RBG’s seat. United States Court of Appeals for the Seventh Circuit Judge Amy Coney Barret’s confirmation would make her the fifth Supreme Court Justice confirmed by a president who lost the popular vote in an election, just in this century alone.
This would mean that a president who represents the electoral college, not the voice of the American people, is stacking the court with justices, who shouldn’t be there. This hardly conforms with the principles of democracy. This means that for generations to come, unpopular justices will remain on the bench, deciding how the law applies to common people. What are the reforms needed to prevent a sudden shock to democracy from happening again?
Expanding the Court
Thirty-two percent of Americans believe that increasing the number of justices would help, according to a Yahoo News/ YouGov poll. In theory, it works: the more justices means a lower chance of any one justice’s departure being consequential to democracy. This was the exact thought process behind the Judiciary Act of 1869, which permanently expanded the number of Supreme Court justices to nine.
Yet, here we are today, where we still feel that the court needs expanding. The past expansion of the court clearly did not work in the long run. We still have a system in which one justice’s decision can be so consequential. Hence the ensuing chaos after RBG’s death can still happen even after expanding the high court. It would be hard to see court expansion working in the future. No number of justices would ever be sufficient and concrete as to prevent this.
An interesting concept is having term limits for both the Supreme Court and Federal Circuit Courts. A term limit can dictate how long one serves. After the contentious hearings of Supreme Court Justice Brett Kavanaugh, about 58% of likely voters supported the idea of term limits for the Supreme Court.
However, this idea would be ineffective. This would allow for the power of any one president’s individual pick to be limited by time. This means that justices will make more rash decisions toward the end of their terms, even on low-quality cases with weak arguments that otherwise may not succeed.
For instance, a justice in the last year of their term may be more inclined to strike down a law than they would be without a term limit. According to a recent study via Harvard University’s Department of Government, legislators that were term-limited produced more polarization. Imagine an 18-year term limit. In year 17, a hyper-conservative justice may overturn Obergefell v. Hodges, the landmark case that legalized gay marriage. Even if whatever case they use to overturn Obergefell had low-quality arguments, a late-in-term justice would be steadfastly inclined to advance their political agenda.
Some have problematically called for an age limit of a justice, saying that when a justice hits a certain age, they must retire. Other than being ageist, this would press presidents to start nominating younger and younger justices to maximize the length of service.
This also means that less experienced people would find themselves at a Senate confirmation hearing. As a law student, it would be an honor to graduate law school and be confirmed to the highest court. However, this is impractical and not for the best of the country.
The bar to confirm a Supreme Court nomination is low. Only a simple majority of present votes are required to confirm a pick. A nominee can also be confirmed with half of present votes and a vice president’s tie-break vote, which likely is for the president’s pick. If we want to depoliticize SCOTUS picks, that bar needs to be substantially higher.
It’s important to understand the dilemma of the Articles of Confederation. The United States learned quickly that requiring unanimous decisions results in fewer decisions. Similarly, requiring 100 Senators to approve of a SCOTUS nominee would result in almost no nominee being confirmed.
The confirmation threshold needs to be moved high enough to encourage bipartisanship but low enough to avoid allowing one vote to shut down a confirmation. This can be achieved by having the bar set at 66% or 75% of present Senate votes. It is unlikely that one party or caucus can surmise this amount alone. It forces majority parties to negotiate with the minority party for a pick.
We need a constitutional amendment
Another reform to be made is the nomination process itself. It’s understood that Article II of the Constitution gives the president the sole discretion to nominate a pick. What if this was not the case?
In parliamentary democracies, the terms “Prime Minister” and “Opposition Leader,” are understood to be their party's (or coalition’s) highest elected officials. If we applied this concept to our presidential democracy, either Speaker of the House of Representatives Nancy Pelosi or Senate Minority leader Chuck Schumer would be considered the “opposition leader.”
A solution is to enact a constitutional amendment that requires the “opposition leader” and the president to agree on a nomination. This would force the president to negotiate with the “opposition leader” to advance a nominee to the Senate Judiciary Committee. Both would wish to preserve their legacies. We could feasibly get less politicized picks during the nomination process.
The “opposition leader” would be the highest-elected official in the line of succession of the party that wins the second-most votes. This person cannot be part of the same party or coalition as the president. If no elected officials in the line of succession are in the opposite party of the president, the Senate minority leader would appropriately fill that role.
Keep in mind that the “opposition leader” may be completely powerless in regular lawmaking instances — their party might hold neither house of Congress. Having this forced collaboration would make for better, less politicized picks to the high court.
We have learned in recent years that holding leaders to “honor” can result in them acting less honorable. In this new era of American democracy, voters ought to advocate for smart amendments that compel bipartisanship. This is the modern way of keeping our government in check. Vote.
In an effort to support issues of justice around the judiciary, The Maneater asks you to donate to the American Constitution Society, a progressive organization committed to pushing the ideas of equality, justice and liberty for all people, through the courts: https://getinvolved.acslaw.org/donate
Edited by Sofi Zeman | firstname.lastname@example.org