US deserves a 21st Century Supreme Court

There are achievable structural changes to create a U.S. Supreme Court to better serve 21st Century America.

They could be made without advantaging either political party for at least several years.

But so far, it appears Americans aren’t likely to get such modernization of the court any time soon.

Why? Because Congress, which holds the only key to begin restructuring the court, is so immersed in partisan gridlock that citizens’ broad desire to improve the panel’s structure doesn’t count for much at the Capitol.

That’s an unspoken message wafting from the six-month study and report by President Biden’s Commission on the Supreme Court. He asked a team of legal and constitutional experts to analyze “the principal arguments in the … debate for and against Supreme Court reform, including … the merits and legality of particular reform proposals.”

The commission did its job. It reported, for example, how seriously the court’s structure is out of step globally: “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court justices. Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits … typically impose age limits.”

The president, meanwhile, has so far taken himself out of initiatives to change the court, first by directing that the panel make no specific recommendations. He also declared to CBS News shortly before his election, “the last thing we need to do is turn the Supreme Court into just a political football,” and he hasn’t since suggested any action in that arena.

That’s regrettable, since Biden, a moderate Democrat who was alternatively chair or ranking member of the Senate Committee on the Judiciary (overseeing court nominations) for a decade, would seem an ideal advocate for improvements for the court.

What’s more, Biden knows perhaps better than anyone how horribly his old cohorts have in recent years demeaned the Senate’s role of advising and consenting on the Court’s nominations, and on all federal judgeships generally.

The Constitution assigns the selection of the justices to the president primarily, but the Senate, driven largely by Minority Leader Mitchell McConnell (R-Ky.), has turned Supreme Court appointments into certain Senate dog fights, making the president a subordinate player.

Older Americans might recall Senate behavior on high court nominations of years past when they proceeded more sensibly. Examples:

• Justice Antonin Scalia, the Court’s archetypal conservative for decades, was nominated by President Reagan in the 99th Congress in 1986, when Republicans held just 52 seats. He got 98 of the Senate’s 100 votes.
• Justice Ruth Bader Ginsburg, the progressives’ darling, was nominated in 1993 by President Clinton, when Democrats held about a five-vote margin — and 96 senators said yes.  
• In 2005 the Senate waved in Chief Justice John Roberts, nominated by President George W. Bush, with 78 votes.
• Even President Barack Obama’s two first-term nominees — both before McConnell headed Senate Republicans — were approved by respectable margins, including GOP votes.

What can be done, considering the Senate’s standoff? Here’s what.

First, limit Supreme Court terms to a staggered 16 or 18 years, then let justices continue serving federal courts in a senior status thereafter until their own voluntary retirement or death. Importantly, except the current justices to serve 20 years, for example, or instead make the new limits effective in 2028 or later.

The Constitution doesn’t prescribe lifetime terms for the justices, though many say it’s inferred with a phrase declaring federal judges “shall hold their offices during good behaviour.”

Some have proposed legislation to set 18-year terms. Jim Jones, former chief of the Idaho Supreme Court, for example, suggested an alternative that would limit terms and let justices rotate to senior status as the court seats remained at nine.

In fact, even Chief Justice Roberts, as a young attorney, suggested 15-year terms to “provide a more regular and greater degree of turnover among the judges.”

Surely, some would demand a constitutional amendment to limit length of terms. But if that challenge landed on the steps of the Supreme Court, it’d be problematic, asking the justices to rule on their own lifetime tenures. How impartial would that be?

The fact is most Americans want an updated court. An Ipsos poll for Reuters early this year found 63 percent of adults favor term limits. Another, by PSB Insights last year, found 77 percent would limit terms.

Through U.S. history, Supreme Court nominees have been typically in their early- to mid-50s, and from 1882 through 1957, a Brookings Institution report explains, nearly all justices served only 10 to 15 years on the Court before death or chosen retirement. Justices usually died much younger back then.

But since about 1960 the typical length of service has trended toward 30 years. Plus, President Trump nominated two judges under 50 years old, as Republicans dug in to slant the Supreme Court for as long as possible.

Second, add seats to the court, but not until after future presidential elections, thus blunting any partisan advantage.

That is, allow whomever is president in 2025 to add an associate justice; the president in 2029 to add another, achieving a panel of 11 or possibly more seats in the future as would be prescribed.

The Constitution leaves the number high court seats up to Congress, which expanded the seats from seven to nine 184 years ago. (It did so then to match the number of federal judicial districts it had added in the West, even though nominations to the court have never been aligned with specific districts.)

Though the court’s makeup has certainly become more diverse, the court ought to reflect the breath a heterogeneous country of over 330 million people.

Keep in mind, the Senate itself started with 22 members; the House, now with 435 members, started with just 59. Meanwhile, U.S. population has grown by about 2,130 percent since Congress set the court’s seats at nine.

Also, other panels overseeing national policy are much larger. The Senate’s own Judiciary Committee has 22 members; the House Judiciary Committee, 44. The Federal Reserve’s Open Market Committee, which so critically oversees and directs national monetary policy and economic growth, has 12 members.

Finally, calling for Supreme Court “reform” is a sneaky way of chasing fair-minded people away from considering desirable changes. The term means to remove faults and errors, correct malpractice or moral or political abuses, etc. Except for Congress perhaps requiring the Court adopt a code of ethics, the need is not for policing the justices: It’s for Congress to find the courage to modernize the high court.

Ed Maixner is a retired journalist who edited the Kiplinger Agricultural Letter and who now writes for Agripulse.com. Previously, he led the Washington Bureau at Farm Progress Companies and served as a legislative assistant to U.S. Sen. Byron Dorgan of North Dakota. Follow him on Twitter @CowPokeEd