Going Extreme: Taking On The Radicalization Of The Supreme Court
Becoming more political in the last few decades, it is our responsibility to return the nation’s highest court to its nonpartisan stature.
Article 3 of the Constitution outlines “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. After being ratified into law on June 21, 1788, the United States Constitution had established a new government with powers vested in three separate but equal branches: the Executive led by the President, the Legislative led a bicameral Congress, and the Judicial led by the Supreme Court. Officially established with the Judiciary Act of 1789, the Supreme Court was structured in that “the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum” with the seating and start of the First Supreme Court occurring on February 2, 1790, in New York City, New York led by Chief Justice John Jay.
Throughout its history, the Supreme Court has seen its fair share of controversies through rulings it has made and changes to its roster, but this year the court once again has found itself thrust into the political spotlight as we find ourselves in a Presidential election year with a sitting President trying to solidify their legacy by nominating a justice to the Supreme Court for a lifetime appointment with the ability to impact policy in the United States for decades to come.
Since the October 2018 confirmation of Associate Justice Brett Kavanaugh, the Supreme Court has had a five to four conservative majority. With the recent passing of Associate Justice Ruth Bader Ginsburg on Friday, September 18th, a battle has begun to surface over who will replace the late justice along with when this confirmation will happen. Senate Majority Leader Mitch McConnell has hinted that the seat should be filled quickly despite saying in 2016 that a “vacancy should not be filled until we have a new President” when then-President Barack Obama was looking to fill the vacancy of late Justice Antonin Scalia in the last year of his Presidency with ten months between Justice Scalia’s death and election day. McConnell — and other high profile Republicans in both the House of Representatives and the Senate — argued that the American people should have a chance to decide who fills the vacancy on the nation’s highest court.
Democrats argue that Leader McConnell should hold himself to the same standard he set in 2016 and wait until after the general election on November 3rd to see who should fill the vacancy: President Donald Trump should he win re-election to a second term in office or Democratic Presidential Nominee Joe Biden should he win. In this debate, we can see the political war developing with each party running to their respective corners over control of a critical branch of our government which was never meant to be political in the first place. The Supreme Court was meant to be the “final arbiter of the law” tasked to ensure the “American people the promise of equal justice under the law” by functioning as a “guardian and interpreter of the Constitution”. In recent decades, we have seen interpretations of the law continually laced with political bias. How can we prevent political bias in the branch of government designed to be the least political? Have we gone too far to one side to attempt reform to redeem the courts’ integrity?
“Independence means you decide according to the law and the facts.” — Stephen Breyer, Associate Justice of the Supreme Court
Order In The Court
The number of justices has changed several times since the establishment of the court. The first change occurred in 1801 when the number of justices changed from six to five with the passing of a new Judiciary Act. This change was only a momentary occurrence as the number returned to six when the 1801 act was repealed. In 1807, the court expanded with the appointment of a seventh Justice to the bench. In early 1837, two more justices were added raising the total number of justices to nine. During the Civil War, the Supreme Court briefly sat ten justices before an 1866 bill reduced the number of justices back to just seven. The nine-justice bench we hold to today was formally established in 1869 with a new Judiciary Act passed and signed into law by President Ulysses S. Grant. Over 150 years have passed since the last change to the Supreme Court, why has it remained so consistent? Is Congress limited in what it can do?
Nowhere in the Constitution is there any wording of limitations to changes that can be made by Congress to the Supreme Court. The Constitution gives sole power to Congress to establish and maintain the judiciary system as it sees fit. As mentioned earlier, the makeup of the Supreme Court has only been changed six times in our nation’s history. With each addition or removal, the political middle of the court shifted more conservative or more liberal. To counter this continuous shift back and forth as Presidential administrations come into power accompanied by shifts in the Congress when chambers change control from one party to another, the Supreme Court needs a more rigid structure to prevent one party from manipulating the court with political motivations. But what would this structure look like?
Imagine for a moment a Supreme Court with fifteen justices. This would be six more than the current number of justices allotted by the Judiciary Act of 1869 and five more than what we have seen on the court in its 230-year history. When many in the political sphere discuss the concept of adding justices, they immediately think of a concept known as “court-packing” which is seen as a move to push the court further one way left or right to shift the ideological makeup of the justices. This might be true but by adding more justices, the opposite could be achieved if done correctly. What if we limited the number of justices from one political party or another who can be appointed? What if instead of serving lifetime appointments, justices serve terms that can ensure the ideological makeup of the court changes as public opinion changes. The big question now is, is this something that can even be done? Has it been done before elsewhere?
“Most of the things worth doing in the world had been declared impossible before they were done.” — Louis Brandeis, Former Associate Justice of the Supreme Court
We Have Seen It Before
It is natural to have doubts about the ability to instill such changes to the institution that has seen the least amount of change since the founding of our nation. Although a structure of this nature has not been seen in our nation’s Judicial system, the above-mentioned system of limiting political appointees is implemented and runs seamlessly in another institution in our federal government: the Board of Governors at the Federal Reserve. Let’s understand how the Board of Governors functions before implementing the same structures to the Supreme Court.
The United States Federal Reserve is run by a board consisting of seven members who each serve one fourteen-year term who are responsible for conducting the nation’s monetary policy, supervising and regulating banks, and providing a variety of financial services to the U.S. government. These seven members serve in staggered terms with one term expiring on January 31st of every even-numbered year. The length of the term and the staggered appointments process are intended to contribute to the insulation of the Board and the Federal Reserve System from day-to-day political pressures from Congress and the President.
If all the governors served full terms, a sitting President would only be able to nominate two governors in one term or four governors if they served two terms in the White House. After serving a fourteen-year term on the Board, individuals are unable to be appointed to another term. A chairman of the board is nominated every four years who is also required to be confirmed by the Senate. So how can these same features be implemented in the Supreme Court?
“Most reforms, most problems are complicated. But to me, there is nothing complicated about ordinary equality.” — Alice Paul, American Suffragist
A Diverging Court
The United States Supreme Court currently allows justices to serve lifetime appointments without fear of removal due to political reasons. Justices are subject to the same criteria the President and other government officials are held to for removal from their office: high crimes and misdemeanors. This lifetime appointment means that if a number of justices leave the court in one way or another, a sitting President can nominate replacements for those justices. These new justices can ultimately change the ideological makeup of the court for decades, solidifying a new ideological middle of the court which could become wildly different than what the general public feels over time. An example of this can be seen when looking at the following issues:
- 79%: Support for allowing abortion under any circumstance or under certain circumstances
- 66%: Support for the legalization of recreational marijuana
- 64%: Support for tightening laws governing the sale of firearms
- 63%: Support for same-sex marriage equality
Even though many of these issues received wide support across the electorate and general public, the Supreme Court has often ruled against them. The landmark Roe v. Wade decision is constantly under threat, marijuana is still considered a drug punishable by jail time and fines, firearm laws at the state level continue to be challenged through the courts, and same-sex marriage was only recently legalized in 2015.
A fairly recent incident where the court diverged from the goodwill of the public was in 1937 when then-President Franklin D. Roosevelt was seeing the country through the Great Depression. To combat the economic chaos, FDR introduced what was known as The New Deal, a series of programs, public works projects, financial reforms, and regulations that responded to the need to relief, reform, and recovery of the economic downturn. The Supreme Court at the time was against several of the bill’s provisions and would rule legislation relating to the New Deal as unconstitutional. In a swift move, FDR proposed the Judicial Procedures Reform Bill of 1937 that would have expanded the Supreme Court by giving FDR the opportunity to appoint up to six new justices, potentially expanding the court to fifteen justices.
Although the reform never passed, it was consequential in pushing the court the act in the public favor. Over 80 years later, we are once again discussing the possibility of reform and restructuring due to the court straying from public opinion. By implementing a new system by which justices are nominated and confirmed, it ensures the court remains consistent with public opinion. But what would this new system look like?
“A house divided against itself cannot stand” — Abraham Lincoln, 16th President of the United States of American
Once again, imagine a Supreme Court with fifteen justices. These fifteen justices would be divides amongst the political parties dominant in the United States. The Supreme Court could be established to function in the following way: The Supreme Court of the United States would be established so that no more than one half plus one of the total seats can be held by a single political party. If an opening becomes available with one half plus one of the total justices of one party serving, the sitting President must nominate a justice from the opposing party. If an independent justice is selected, that selection will count towards the party of the serving President where applicable. Each justice serves for a period of thirty years with one term expiring every even-numbered year on January 31st. At the end of the period, the justice may be renominated or replaced. Justices can serve no more than two thirty-year terms. But how does this solve the issue of political bias on the court?
The idea of limiting the number of justices from one party to a simple majority would prevent the court from tilting too far left or right in the event that multiple justices either die, resign, retire, or are removed during a single or two concurrent Presidential terms. These limitations would also allow the justices to be more moderate where political bias is at its least likely in the rulings of the court. As justices become more radical, political bias is likely to begin leaking into court rulings. This also limits the number of justices that a single President can replace to only two if they serve one term or four if they serve two terms in office.
“The aim of the law is not to punish sins, but is to prevent certain external results.” — Oliver Wendell Holmes Jr, Former Associate Supreme Court Justice
When the Supreme Court was first established, the founding fathers had in mind a system designed to protect our country from legislation and laws passed that would violate our constitution, take away the rights of the people and the states, or degrade our founding principles. Throughout its history, the Supreme Court has remained true to that mission but recent fractioning along political lines accompanied by a growing political influence on the court, it is time to implement reform dedicated to returning the court to a neutral state. The above-mentioned structure would ensure the court remains free of political bias while also allowing the court to change as the public’s overall political opinion changes. We want our justices to determine the legality of the law. They should not inject their own biases into the decisions that set precedent for some of the most important issues we are facing as a nation today.
“When a judge sits in judgment over a fellow man, he should feel as if a sword is pointed at his own heart.” Socrates, Greek Philosopher