Those individuals who gathered in Philadelphia in 1787 to craft a U.S. constitution weren’t representing any universal philosophy — or, for that matter, pure democracy. Confirmed federalists and ardent believers in states’ rights were already bickering. Those sweating in the summer heat in Philadelphia did not include African-Americans or women.
Yet while these “founding fathers” weren’t perfect or inclusive, neither were they stupid.
The national high of gaining independence from England was already dissipating, the unity forced by the armed insurrection beginning to fray. And despite their political differences, the constitutional framers were all too aware of the perils of human nature. That’s why they injected “checks and balances” into their creation. The system was designed to keep any part of the governmental triad — the executive, legislative, and judicial branches — from gaining an unfair advantage over the others.
As it turned out, they were wise to be concerned. While paying lip service to the restraints placed upon them, the legislative and executive branches have spent the ensuing 233 years finding ways to outwit them. Along the way, the Supreme Court has been a consistent target, and the current furor over how and when to replace Ruth Bader Ginsburg on the nation’s highest bench is just the latest example.
Someday, perhaps, the Supreme Court justices will be replaced by a robotic, computerized legal brain. Both sides in an argument will enter their briefs into the database, which will have already downloaded the U.S. constitution, its amendments, and a record of every case ever decided by the court. Meanwhile, no doubt, the legislative and executive branches will be hard at work finding hackers to infiltrate it.
For now, though, we are forced to accept that those black robes are filled by fallible human beings.
Of course, the original idea was that appointing justices for life would insulate them from any political pressure. This overlooked the fact that most are already politicized by the time they take office, if only because many states decide their lower court judges through elections. Indeed, it is almost impossible for anyone in these polarized times — justice or not — to avoid leaning one way or another.
This has given rise to the misconception that the Supreme Court is an extension of the political system, rather than a counterpoint. In reality, when the justices involve themselves in a controversial issue such as abortion rights or gun control, their task is not to decide whether they approve of one side or the other. Their job is to determine if the law or proposed law at issue is constitutional. Thus, courts perceived as liberal have often handed down conservative-leaning decisions based on “precedent,” and vice versa.
The very terms “conservative” and “liberal” have a different meaning when applied to judges. A conservative judge is one who favors a very strict adherence to the Constitution; “liberals” are open to some variance based on changing times.
One problem lies in the custom of presidential appointments. It’s a crapshoot — some chief executives (most recently Donald Trump) have the opportunity to fill several vacancies caused by death or retirement, others never get any chances at all.
And that’s where human nature comes into play — it’s only natural for a president to name someone who appears to share the same political views and social values. The Senate is supposed to function as the last line of defense against a questionable pick, but that seldom happens when the majority of that body and the president share the same party.
So today’s judges are chosen by the Senate majority, walled off from the general public. Even worse, the result is virtually dictated by the majority leader, a role currently filled with gusto by Mitch McConnell. The result is not a balanced government but a political monolith. Moreover, the lifetime appointment means that future courts might be in direct opposition to the philosophy of the party in power.
At this point, the political pandora’s box is wide open. As recently as 1993, Utah Sen. Orrin Hatch — a Republican in a Democratic presidential administration — suggested Ginsburg replace Byron White on the Supreme Court. She was confirmed by a 96-3 vote. The most recently added justice, Brett Kavanaugh, took his seat only after a week of contentious partisan wrangling and a vote decided strictly along party lines.
One suggestion has been to increase the number of justices, but this could only exacerbate a philosophical imbalance.
As Frederick A.O. Schwartz Jr. wrote on the Website “Democracy”: “Life tenure permits justices themselves to strategically time their retirements so that an ideologically like-minded president can appoint their successor. Recently, this has become the norm. Such ideological control of a Supreme Court seat was never contemplated by the founders.”
The solution, he continued, would require a constitutional amendment with two provisions.
“First, Supreme Court appointments should be regular. Every president, in the first and third year of each term, would nominate a Justice, subject to Senate confirmation. Second, each new Supreme Court justice would serve a single 18-year term — still “during good behavior.” (This term limit would not apply to current justices.) And if a new justice did not serve a full term due to retirement or death, their successor would be nominated only to complete the 18-year term’s remainder. The successor would not get a new 18-year term.
“Regular appointments work only if accompanied by term limits — which have independent benefits as well. Without a term limit, regular appointments, coupled with increasing longevity, would lead to a court that was huge. Moreover, an 18-year limit fits with a 9-member court. Eventually, two justices will end their 18-year term in each four-year presidential term, just as two new justices are appointed.”
Others have suggested taking the power to name new justices out of the president’s hands altogether, or simply including the chief executive on a bi-partisan search committee that would ultimately offer a nominee for Senate confirmation. Neither suggestion has gotten much traction so far.
Times may change, but human nature doesn’t.