Editor’s Note: For another viewpoint, see Point: Supreme Court Doesn’t Need Fixing, Everything Else Does.
Calls for “judicial reform” have too often been code for seeking changes to the courts for partisan advantage. This is why “reform” is rarely accomplished. Why would Republicans help tilt the courts in favor of Democrats or the other way around?
As things stand, there’s a stalemate on judicial reform in the Senate, due to that chamber’s filibuster rule requiring a two-thirds supermajority vote to end debate on a matter. Unless there is bipartisan support, nothing will happen. But if the filibuster is eliminated, whichever side is in control of Congress and the presidency may simply create new judicial seats to push the courts in their preferred direction. That would be a terrible outcome, expanding the court system for no legitimate reason, merely to install political partisans. That sort of court-packing would degrade judicial independence.
Instead of focusing on partisan advantage, legislators should focus on resolving the randomness that plagues the current system. The biggest swings in court leanings occur when a Republican appointee is replaced by a Democratic appointee or vice versa. This occurs when a judge appointed by one party randomly happens to die while the other party holds the White House. The balance of our legal system should not be based on such random chance.
Instead, after each presidential election, the president should get exactly one single appointment to the Supreme Court per term, replacing a justice appointed by a previous president. With a four-year presidential term and nine justices, this means a 36-year judicial term. The balance on the court over time would then be entirely based on the winner of presidential elections over the last 36 years. Likewise, lower federal court seats could have a staggered term so an equal fraction of seats are open each presidential election.
As to how to handle the death of justices, let the justice appoint and get Senate-confirmed an understudy. That person would take over if the justice was no longer able to do perform their duties. That person, upon elevation to full justice status, would then select their own understudy for when they need it and would serve out the remainder of the term. This would ensure their replacement would have a similar jurisprudence.
This means the jurisprudential — how the judge treats the law — makeup of the courts would not drastically change due to the death of a justice. Also, a justice would not feel pressure to stay on the court past when they are fully able to perform their duties to ensure someone of similar views replaced them. Nor would justices be pressured to leave early when there is a current president who shares their views.
Senate confirmation would continue to ensure that the person selected to replace a justice is of a high enough caliber to be trusted with that responsibility. Delaying confirmation of qualified nominees would no longer serve an ideological purpose.
One challenge to this reform is it would require a constitutional amendment to change the lifetime appointment of judges currently to a very long fixed term of office. This wouldn’t change the effective term of a justice very much, considering the longest-serving justice was William O. Douglas at 36 years and 209 days. A constitutional amendment is hard to pass, but this kind of unbiased amendment could acquire the bipartisan support needed to garner a two-thirds vote of both houses and then ratification by three-fourths of the states.
There would be some important details to work out: for instance, perhaps a pension upon retirement might only be provided if they were a judge or justice for at least 15 years. Or, should the understudy work with the justice every day as a kind of permanent clerk, or live a life outside the court?
There would also have to be a transition plan from the current system to the new system. Presumably, the remaining term of each justice would be determined by their seniority, with the most senior leaving after the next presidential election. Currently, that would be Justice Clarence Thomas.
This would remove the randomness from our legal system without giving an advantage to any party. The 36-year cycle to completely change the Supreme Court will ensure that the law remains stable and only changes slowly. The changes that do occur would be based on who is selected by the American people and not random chance.