More than 70 years ago, President Franklin Delano Roosevelt unveiled what came to be known as his scheme to “pack” the Supreme Court, by expanding it enough to break the grip of conservative justices. Roosevelt won a second term by a landslide, and his party enjoyed huge majorities in Congress—yet a core of four right-wing (and life-tenured) Supreme Court justices, with the aid of one swing justice, had routinely blocked crucial New Deal legislation during his first term. All over 70 years of age, these justices were products of an era of unrestrained capitalism, which had become increasingly discredited in the wake of the Great Depression.
By subjecting justices to (extremely generous) term limits, we would avoid the spectacle of a court that has come to look more and more like the old Soviet Politburo, and the quality of justice would not be as compromised by the threat of Alzheimer’s.
Stymied in his efforts by a reactionary third branch of government, Roosevelt asked for federal legislation that would produce a court less out of touch with current economic and political realities. His proposed legislation failed to pass, but in the effort’s wake, a chastened court seemed markedly less inclined to shoot down New Deal programs.
The potential parallels with today’s situation are striking. Because of our absurd system for choosing Supreme Court justices, which grants life tenure to people who remain routinely on the court for a quarter century or more, it’s inevitable that the politics of the court will fail to reflect the politics of the nation.
At present, we’re stuck with a Reagan-era court for a post-Reagan-era America. Just as in FDR’s time, four right-wing justices (Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito) can be counted on to apply a legal and political philosophy that is, in most respects, far more conservative than that now preferred by the majority of the American people.
This makes Anthony Kennedy the court’s crucial swing vote, just as Owen Roberts was during FDR’s first term. (Roberts’ vote to uphold New Deal legislation in the wake of FDR’s court-packing proposal was dubbed the “switch in time that saved nine.”) Because Kennedy votes with the Four Horseman of the Reagan Revolution more often than not, we have a Supreme Court that is considerably more conservative than either of the other two branches of the federal government. (How far the court has shifted in the last generation can be seen in the fact that John Paul Stevens—a Ford appointee who was, ideologically speaking, in the middle of the court 30 years ago—is now its most liberal member.)
And because, starting with David Souter, the most likely departures from the court are all from its relatively liberal wing, there’s little that President Obama or the Senate can do about this in the short term. It’s possible, though unlikely, that a skilled professional politician like Michigan Gov. Jennifer Granholm, who is on Obama’s short list, could alter the court’s voting dynamic.
All of this gives the current GOP campaign to stop Obama from appointing “left-wing judicial activists” an air of anachronistic unreality. As in FDR’s time, the potential threat to the democratic process is now much more from the kind of right-wing judicial activism that gave us, among other things, the presidency of George W. Bush.
The correct response to this series of unfortunate events involves making a basic change in the terms under which Supreme Court justices serve. Over the last generation, the average tenure of justices has increased from 15 to 26 years. Vacancies have become much rarer, leading to an unseemly scramble to nail down open seats for three decades or more. All this guarantees situations like today’s, with its increasingly serious mismatch between the nation’s politics and the court’s.
One intriguing proposal for unpacking the court has been put forth by a group of legal scholars drawn from across the ideological spectrum. They recommend limiting Supreme Court appointments to 18-year terms. If implemented, this plan would guarantee every president at least two appointments per term, and ensure that, at any one time, the majority of justices will have served no more than a decade.
It’s unclear whether this proposal could be implemented by a federal statute, or would require a constitutional amendment, but its advantages over our present, increasingly ridiculous system are obvious.
By subjecting justices to (extremely generous) term limits, we would avoid the spectacle of a court that has come to look more and more like the old Soviet Politburo, and the quality of justice would not be as compromised by the threat of Alzheimer’s.
Nor would presidents have to more or less automatically limit themselves to considering candidates between the ages of 47 and 54 (this is only a slight exaggeration of the present practice).
Best of all, we would avoid handing over one of the three branches of government to the dead hand of political movements, such as Reagan-era movement conservatism, that have been rejected decisively by contemporary voters.
Giving Supreme Court justices life tenure makes sense only if you believe that the kind of cases and controversies the court deals with can be resolved by simply applying the law, rather than through a process that inevitably requires the justices to employ politically controversial interpretative assumptions. (Indeed, the extent to which contemporary politics ought to affect judicial decision making is itself politically controversial, and not something that can be resolved through legal reasoning.)
Supreme Court justices are unavoidably politicians. That’s not all they are, but their job is political enough that giving them the same term of office as kings and popes is a repugnant and nonsensical practice in any even loosely democratic system of government.
Paul Campos is a professor of law at the University of Colorado at Boulder.