IN A COUNTRY FOUNDED on the principle of self-governance where the people have power to choose and replace their leaders, the country’s top jurists-and perhaps some of the most powerful public officials-maintain king-like status. The United States remains the only democratic nation in the world whose Supreme Court Justices enjoy life tenure. Of the 50 states, only Rhode Island follows the federal model.
Our system is broken. After a period of 11 years without any Court appointments, recent vacancies once again raise questions regarding the wisdom of allowing one president to shape the long-term direction of the Court with multiple lifetime appointments. As the war on terrorism escalates and the rights of Muslims, African-Americans, Arab-Americans, and other minority communities hang in the balance, federal courts will continue to serve as a forum for a number of important civil rights struggles. A system that does not guarantee a periodic infusion of Justices runs the risk of one party taking the Court in its own direction with lifetime appointments.
Our system is not broken because many scholars question the legal reasoning of particular decisions such as Bush v. Gore. It is broken because in an era when even one new appointment can significantly alter the balance and direction of the Court, the public cannot be sure that the person it gives the power to appoint new Justices will have the opportunity to make any changes at all. Indeed, between 1994 and 2005, the Court had more impact on the selection of the president than President Clinton and President Bush had on the composition of the Court. The recent vacancies due to the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O’Connor have reignited the debate over the wisdom of preserving a system that allows one president to shape the direction of the Court for decades.
The framers of the Constitution were faced with the difficult task of creating a court that was shaped by the will of the people but also was free from political considerations that could compromise its independent consideration of the law. The current appointment process, however, has resulted in the worst of both worlds: Not only has the Court become a politicized body, but it also runs afoul of the people’s will. The last decades of the twentieth century brought an end to popular constitutionalism, and the onset of an era in which the Second Rehnquist Court engaged in a broad reappraisal of law in a number of areas, including federalism, racial equality, and civil rights. The fundamental changes that ensued stirred debate about judicial usurpation of the people’s role.
We have already witnessed the Court appropriate the most fundamental democratic responsibility, the election of the nation’s highest political official. More recently, scholars observed with dismay the Court’s ruling that the Constitution allows private property to be taken for commercial purposes. As University of Chicago Professor Richard Epstein noted recently, “The Court could only arrive at its shameful Kelo ruling by refusing to look closely at past precedent and constitutional logic … [T]his bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.” This movement away from the people has occurred even while scholars have noted that the authority to interpret the Constitution lies not exclusively with the Courts, but also with the people.
The overwhelming majority of proposals to reform life tenure use the mechanism of constitutional amendment to institute reform. The inescapable reality, however, remains that amending the Constitution, especially as it pertains to a national issue as prominent as the composition of the Supreme Court, will continue to remain virtually impossible. What would a non-Article V alternative look like?
Similar to the manner in which presidents appoint their own cabinet officials, Congress should guarantee new presidents two Court appointments at the beginning of their terms. The appointees would serve for a term of 16 years, after which they will have the option of serving on a lower federal court. It is likely that many will chose to do so-the average tenure on the Court since 1900 is approximately 15.65 years. While the current Court has remained in place for the last 11 years, a 16-year guideline could be institutionalized in a manner in which turn-over occurs at a more consistent pace. As some have proposed, Congress could provide additional incentives such as seeking assurances during the confirmation process that Justices would leave after 16 years.
It is possible that some Justices may refuse to move to the circuit courts. Under such a scenario, the size of the Court may expand. Any increase in size, however, will likely be minimal as the president is authorized to hire replacement judges only when a retirement or death results in the presence of fewer than 10 members on the Court. Ending replacement appointments would also have the benefit of reducing the likelihood that Justices will time their departures based on political calculations.
The Constitution does not prohibit Congress from increasing the number of members on the Court and there surely exist more than enough qualified candidates to place on the Court every four years. Changes in size, in fact, are not foreign to the Court. The first Court consisted of an even number of Justices – one Chief Justice and-five Associate Justices. Congress added one seat to the Court in 1807, two seats in 1837, and a 10th seat during the Civil War. Congress reduced the Court to its current size of nine in 1866 to prevent Andrew Johnson from securing an appointment. Moreover, expansion of the high Court beyond nine Justices is not without international precedent. The Japanese Supreme Court has 15 Justices. In Israel, where the number of judges is determined by the Knesset, 12 Justices presently sit on the Supreme Court. And over the last 55 years, the Indian Parliament has gradually expanded its Supreme Court from eight Justices to 26.
Some may argue that this proposal may actually further politicize the Court by essentially subjecting the appointment process to the politics of presidential elections. It is important to note, however, that in this respect, the Court is already highly politicized. For example, while campaigning, President Bush pledged to appoint judges in the mold of Justices Antonin Scalia and Clarence Thomas. Under the current system, life tenure also creates an incentive to appoint the youngest and most partisan Justices possible in order to have maximum impact on the Court. Justices often base their departures on partisan calculations, a politicized feature of the current system that is actually remedied by this proposal.
Indeed, it is difficult to imagine how a Court that has decided a presidential election could become more politicized. Under the current system, politics plays a major role in the period leading up to the Senate’s consideration of a nominee. As witnessed following the nomination of Chief Justice John G. Roberts, interest groups compete for television commercial time to lobby the public and Congress.
These partisan considerations will continue to affect the Court’s composition whether or not this proposal is implemented. This proposal, however, will reduce the harms of politicization in the current system in two main ways: (1) a politicized Court will no longer be able to shape the law for a number of years without an infusion of new Justices, and (2) no single president will be able to shape the long term direction of the Court with a large number of new lifetime appointments.
There are no perfect solutions to the problems associated with the constitutional system of life tenure. Proposed reforms cannot completely prevent the consideration of political factors when making appointment decisions or end the political attacks against Court nominees. Yet this proposal attempts to provide more balance and public involvement in the process by guaranteeing each president two appointments and thus reduce the need to replace retiring Justices. Perhaps more importantly, it introduces a mechanism for replenishing the Court within the parameters of the Constitution. Such an approach will be necessary before reforms, such as the 16-year figure, can become normalized and perhaps so accepted that the Article V route becomes a feasible option.