Now that Democrats have gained control of the White House and both chambers of Congress, they have every right to attempt to pack the Supreme Court. With the Republicans’ tradition-breaking denial of Obama’s selection of Merrick Garland, the rush to install Amy Coney Barrett before the last election, and former president Trump’s packing of the federal court system with conservative ideology instead of meritocracy, the emotional temperature appears very much on their side. The argument against these actions, however, is strong. It tarnishes the institution of the Supreme Court.
The Supreme Court was envisioned as an independent body of government, not a political football. The fact that it has become politicized by the distortions of one party is all the more reason to defang the ideologues and move the makeup of the Supreme Court toward equity and fairness. With Americans fatigued by political infighting, the time seems right to seek changes that lean toward impartiality.
Unlike the Electoral College system, where an amendment of change means passage by the majority of states, the makeup of the Supreme Court is in the hands of Congress. Here are some variables that can be modified.
Size of the Court: There is nothing sacrosanct about the number nine. At various times the Court has numbered from five to 10. We live in a rapidly changing world with new issues arriving at an exponential rate. It is unrealistic to expect Supreme Court Justices to be adequately educated in all issues of the day. Additional Court Justices with knowledge in modern issues could soften that gap.
The Court currently hears about one percent of cases forwarded to them. Expanding the size of the Court could allow for an increase in the number of cases considered if structural modifications were established to reach that goal.
Eliminate lifetime appointments. Currently, partisan choices by the party in power are magnified by lifetime appointments. The selection of a young justice who may be in office for almost half a century is a poor reflection on a democracy. The past three appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, are cases in point. With an average age of 52, their total time serving could easily exceed 100 years.
Limiting years of service would not only diminish the likelihood of a sustained ideological hold, but it would also widen the available candidacies. Many extremely capable candidates in their 60’s, for example, could be eligible if the term of service was set at 15 years. Presently, nearly all states have set a term length for state supreme court justices.
Term limits by number of years served could also establish a regular turnover. In doing so, appointments could occur during every presidential period and become a part of each political party’s term of office.
Age limit. Put an age limit on Supreme Court justices. Presently our oldest justices can work into their late eighties and even nineties. While some justices may be competent very late in life, others may not. We don’t take those chances with airline pilots and many other occupations. Why should we with Supreme Court justices?
To some readers, the above suggestions may seem far-fetched or unrealistic. But they do suggest there is a wide range of options that can be taken to make the Court more independent of partisan influence.
The Democrats’ hold on both houses of Congress is razor-thin. With both political parties highly aware of their vulnerability in the future, it may be a perfect time to reduce partisan heat. Depoliticizing the Supreme Court would be one such step.
If the size of the Court was expanded, length of service reduced, and age limits set, the partisanship of the body would likely lessen. It would lessen because a larger Court would increase the diversity of thought and a limit to the number of years served would create greater churning of Justices. A forced retirement age would also create more frequent changes in the Court’s composition.
President Biden has created a bipartisan commission to study reform of the Supreme Court and the federal judiciary. It would be a service to a politically exhausted nation if the president could lead, with the input from the commission, to modernize the Supreme Court and return the third branch of our government to its rightful place.