Justice Stephen Breyer’s anticipated retirement announcement set off the usual frenzied speculation about who will be “the pick.” The reaction perfectly illustrates everything that is wrong with the Supreme Court.
Justices seem unlikely candidates to become cultural icons, but the prolific memes and two documentaries about Justice Ruth Bader Ginsburg make it plain that justices are increasingly viewed as rock stars. This should not be surprising because today’s Supreme Court has become a super-legislature to which we look for solutions for everything from gun violence to the Covid-19 pandemic. Add to this that this super-legislative body has only nine members – all of whom are appointed for life – and it’s easy to see why individual justices are seen as either saviors or destroyers of our democracy.
The over-concentration of power in a small group of people makes their particular points of view have an extraordinary effect upon our country.
Among worldwide democracies, the United States stands pretty much alone in obsessing over its high court and those who serve on it.
In Britain, for example, little attention is paid to appointments to its relatively new high court, and Canadian commentators have opined that more Canadians are familiar with Roe v. Wade than any of their own country’s high court judgments.
How did the high court gain such power in a country with three separate but supposedly equal branches of government? The full answer to this question is complex but can be boiled down to the simple fact that the Supreme Court is a much more efficient institution than Congress.
It has only nine votes to deal with and runs by a simple democratic majority vote compared to the 100-member Senate, which can be filibustered to a standstill by just one senator objecting to bringing a bill forward to a vote. The most that a single justice can do is write a dissenting opinion.
The enormous importance of appointing and confirming justices accounts for much of the “mastery” attributed to then-Senate Majority Leader Mitch McConnell, who blocked then-President Barack Obama’s nomination of Merrick Garland to the Supreme Court but later rammed through three of then-President Donald Trump’s nominees.
The over-concentration of power in a small group of people makes their particular points of view have an extraordinary effect upon our country. The Federalist Society understands this well. It has spent decades grooming and cultivating a generation of like-minded conservatives with nearly identical resumes to be deployed among the federal judiciary as a breeding ground for potential Supreme Court nominees.
Such uniformity is a dangerous end-run around the diverse points of view that a democracy is supposed to foster.
What are some fixes to this situation? Most obviously, we should abolish life tenure for the justices. Many Americans may not realize that our system of lifetime tenure makes the United States an outlier as a country. As noted by eminent legal scholars, “the American system of life tenure for Supreme Court Justices have been rejected by all other major democratic nations in setting up their highest constitutional courts” — these include England, France, Italy, Spain, Portugal and Germany to name but a few.
Life tenure for state justices is even a domestic outlier since 49 of the 50 states do not have life tenure for their justices. Rhode Island is the only one. Still, merely abolishing life tenure and replacing it with a set amount of years would not solve the problem of too much power consolidated in a nine-member group of unelected officials.
This is the real reason why the numbers on the court need to be expanded. Not to “pack the court” but to unpack it of excessive undemocratic countermajoritarian power. Increasing the number of justices — with term limits — would significantly diversify the points of view and begin to diminish the cult of personality that has grown around individual justices.
Justices should be less like rock stars and more like anonymous civil servants. But the best solution would be to rotate the existing federal judiciary at random through terms of service on the Supreme Court.
It has been mostly forgotten that the first Supreme Court justices were traveling judges who moved from city to city within their jurisdictions to hear cases. Known as “circuit riding,” this system forced the justices to hear all different kinds of cases traveling as much as 1,000 miles.
They really got outside the Beltway. Trial judges and appellate judges from across our country encounter an enormous diversity of legal issues and people. They would bring the same richness of that experience to the cases they would hear as justices.
A high court composed of experience like that would likely far better reflect the real concerns of Americans than today’s hallowed group of nine who live and work for all their Supreme Court lives cocooned in a templelike environment.