The U.S. Supreme Court is in need of reforms.
That became obvious at least a decade before the current quarrelling and divisiveness over selecting a replacement for Justice Ruth Bader Ginsburg. And the battling over the process has detracted from allowing our nation’s citizens to provide a proper period of mourning and honor to RBG’s stature as a giant of jurisprudence.
The need for Supreme Court reforms became obvious even before Sen. Mitch McConnell’s power plays of nearly five years ago, which denied President Barack Obama an opportunity to have Justice Merrick Garland confirmed to the high court.
Those issues have merely served to underscore so vividly the polarization and politicizing that have occurred since the high court struck down restrictions on financing election campaigns in both the Citizens United ruling of 2010 and the McCutcheon ruling of 2014. Both were 5 — 4 votes.
Since then it’s been noted that as many as 80% of U.S. citizens want to limit campaign fundraising.
Not only is there a desire to remove the selection of the nine Supreme Court justices from party politics, but the opposition to life tenure for justices has been slowly mounting since 2000 when the high court essentially awarded the presidency to George W. Bush over Al Gore.
The reforms proposed for the Supreme Court came with a June report from The Commission on the Practice of Democratic Citizenship, organized about three years ago by the American Academy of Arts and Sciences.
After two years of work, the commission identified six strategies with 31 recommendations on how to improve and strengthen our nation’s democracy. But the commission’s report has received little attention.
One of its major recommendations calls for federal legislation to establish 18-year terms for Supreme Court justices — with appointments staggered so that one is selected every two years during each term of Congress.
In my article files of seven years ago, and my 2014 essays book I called for ending life tenure and establishing 10-year terms for the high justices – with a provision for a second 10-year term after a vote-of-confidence election. That would provide for some accountability to voters if the justices had to campaign for election at the end of a 10-year term.
But I like the academy’s proposal for staggered 18-year terms even better. That way each president will have the opportunity to appoint two high court justices regardless of which party is in control of the executive and legislative branches. It may not totally remove the appointments from politics, but it certainly will reduce the potential for one party to pack the court with one-sided ideologues.
The proposal adds that at the end of their term the justices would then transition to an appeals court or, if they choose, to senior status for the remainder of their life tenure. That would allow them to determine how much time they spend hearing appeals cases, and at an undiminished salary.
When our Founding Fathers adopted The Constitution, citizens died at younger ages, and younger justices were more attuned to the struggles facing average voters. Back then the average life tenure was about 15 years. Since then it has nearly doubled to almost 30 years.
At age 79, I question how well I can identify with the situations faced by our 20-something and 30-something citizens. And I think Supreme Court justices in their 70s and 80s become too remote from the issues facing voters and workers in their 20s through the 40s.
The Supreme Court holds tremendous power, and when you mix in the deepening polarization of the Court, with high-profile, high-impact issues drawing 5 — 4 rulings, one president filling several vacancies could pack the court with one-sided bias. That was the concern and reasoning cited in the Academy commission’s report.
And that’s the very situation that has prompted the current battling in Congress and provided more aggravation to our national divisiveness.
Although the constitution stipulates that the Supreme Court justices serve “during good behavior,” it is deemed obvious that the framers meant for the justices to serve life terms. The Constitution does not explicitly establish the type of judicial work to be done during that life term, nor does it prevent Congress from enacting terms, the Academy’s panel observed.
So federal legislators have the power to create 18-year staggered terms.
Some of the other major recommendations in the commission’s report called for:
Ranked choice voting in presidential, congressional and state elections;
Independent citizen redistricting panels in all 50 states, ending gerrymandering;
Restrictions on election contributions and full disclosure laws in all 50 states;
Mechanisms for public funds matching donations to amplify the power of small donors;
Changing the federal election day to Veterans Day;
Several recommendations to make it easier for citizens to vote;
Preregistration of young voters with educational opportunities for them to practice voting, and
Making voting in federal elections a requirement of citizenship just as jury service is in the states.
But with the looming presidential and congressional elections only a few weeks away, it’s obvious that thorough discussions of those issues must wait until a future presidential administration.
Darrell Berkheimer, who lives in Grass Valley, is a frequent contributor to The Union. He has seven books available through Amazon. His sixth, Essays from The Golden Throne, includes 60 columns published by The Union, plus a dozen western travel and photo essays. Contact him at [email protected]