Counterpoint: Why Supreme Court reform is needed

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James Dickey, senior counsel at the Upper Midwest Law Center, criticizes term limits for Supreme Court justices (“Calls for court term limits attack foundations of our federal republic,” Aug. 5) on the premise that they undermine the separation of powers and judicial independence. He concludes that “[i]t is hard to conceive of a reason … beyond political motivations.” Both the premise and the conclusion are faulty.

Let’s start with the problem. The French sociologist Alexis de Tocqueville wrote in 1835 that “hardly any political question in the United States … sooner or later does not turn into a judicial question.” The Supreme Court is the last word in American law: As Justice Robert H. Jackson put it, “We are not final because we are infallible, but we are infallible only because we are final.”

The court’s ideological balance matters, and both political parties invest extraordinary political capital whenever a seat opens up. But each vacancy’s timing (and the fortuity of which party controls the presidency and the Senate at that moment) often depends on a sitting justice’s death — an unfortunate and unpredictable event, which ignites a battle over the vacancy. Filling the vacancy resulting from Justice Antonin Scalia’s death was especially problematic both because it occurred so near a hotly contested election, and because its consequences openly advantaged one political party. Since Justice Neil Gorsuch filled that vacancy, the imbalance has grown and has affected public confidence in the court. Meanwhile, scandals around two sitting justices have eroded that confidence even further.

The rule of law and the scheme of ordered liberty that guarantee our individual rights and freedoms depend upon an independent judiciary — independent not only of the legislative and executive branches, which the judiciary checks and balances, but independent as well of political parties and factions, of moneyed interests, and of popular majorities. The judiciary must uphold constitutional and individual rights with such fairness, integrity and intellectual honesty that the people respect the judicial power even when they disagree with its results. That respect is at a nadir.

Reform is needed because each vacancy sets off such polarizing, distracting, damaging partisan warfare. I agree with Dickey that expanding the court is the wrong answer. Court-packing is short-sighted: It lets the party in power redress a perceived imbalance with another, intentional imbalance; it undermines the court’s institutional legitimacy, and it kicks off a race to the bottom. If the Democrats add a justice or four, won’t the Republicans too, when the shoe is on the other foot? A nine-member court has worked well; a 13-member court would work less well, especially if half its members were appointed to partisanly conjured seats. And once court-packing becomes the new normal, a court that swells to 20 or 30 or 50 justices starts to look an awful lot like a legislature.

So if adding new justices isn’t the solution, what is?

One proposal is fixed terms — say 18 years, with one seat opening every two years, and each president appointing two justices per presidential term. Each vacancy would be predictable, and the appointments would be distributed in proportion to elections. Even though the proposal would end lifetime tenure on the court itself, it would neither require a constitutional amendment nor undermine the separation of powers if a justice rotating off the court continued to hold a lifetime appointment elsewhere in the federal judiciary, as retiring judges often do when taking “senior status.” Each justice would hold supreme judicial power for only(!) 18 years, but the judiciary itself would cede no power to another branch. This approach has already worked with some lower-level courts, such as the Foreign Intelligence Surveillance Court, which consists of sitting federal judges who serve for seven years then retain their original judgeships.

The fate of important constitutional rights and the outcome of the thorniest problems in our system of government shouldn’t depend on the roulette of when death befalls our top jurists. But the system of appointing justices does need reform, and there are worthwhile ideas out there. Court-packing shouldn’t be among them. Term limits should.

Brian Melendez, of Minneapolis, is an attorney. He was the 2007-2008 president of the Minnesota State Bar Association and a member of the Citizens Commission for the Preservation of an Impartial Judiciary (the “Quie Commission”) in 2006-2007.