The framers get credit for building a foundation of government that limits corruption through a refined system of checks and balances. Still, none of the branches are party-proof, and an increase of polarization causes even the judicial branch, meant to be “above politics,” to fall subject to the partisan battlefield in our country today.
Each justice currently serving on the Supreme Court was once the subject of the nomination and approval process—now a politically charged procedure. The appointment of a new justice is a move used to ensure that the president’s legacy will outlive his tenure, and the party in power uses the approval process to claim a political victory. The most recent appointees are perfect examples of the Supreme Court becoming a purely political tool. In response to Senate Majority Leader Mitch McConnell preventing the appointment hearing of President Obama’s Supreme Court appointment, Merrick Garland, Democrats are attempting to fight back with a move that is just as political.
Multiple 2020 candidates are proposing or expressing support towards modifications to the structure of the Supreme Court. Pete Buttigieg introduced proposals that include increasing the number of justices to fifteen, adding term limits, and having partisan standards such as a set number of Democrats, Republicans, and Independents. Of the leading candidates, Warren and Harris support court packing and introducing judicial term limits, while Sanders opposes such modifications [2]. Article III of the Constitution sets the guidelines and requirements for the Supreme Court, and Article II prescribes the power to nominate to the president. Other than that, the Constitution leaves it quite open. The judicial branch is intended to be a check on both the executive and legislative branches, but it is now the case that these two are manipulating the process. Modifications to the current processes surrounding the appointment and approval of Supreme Court Justices could reaffirm the principle that the Court ought to be above politics.
As supported by candidates Warren, Buttigieg, Harris, and Yang, increasing the number of justices on the court could have both positive and negative consequences [2]. More justices could potentially create a judicial representation that better reflects the population, but if 535 congressional representatives are hardly an accurate representation of the public, increasing the number of justices would likely fall to the same fate. With more justices, cases would still rely on a majority rule, but nine of the best legal minds in the nation would most likely reach the same conclusions as fifteen.
Additional adjustments include party standards. Setting standards based on political party of justices has the potential of creating a more balanced court, but there is a greater reality that including partisan affiliation as part of the requirements would fuel the partisan battle throughout the approval process. Placing a letter next to the names of representatives, presidents, and candidates automatically creates levels of either approval or mistrust. A justice does not pledge allegiance to a party, but rather, is tasked with impartially defending the law. Including party as part of the qualifications for the appointments would likely lead to more mishaps in the approval process, and once on the court, justices may feel pressure to make decisions based on party policies.
The intention behind life-time terms is to avoid corrupt, power-motivated justices. This modification has the fewest initial weaknesses. With justices serving lifelong terms, the president and the in-party are gambling on the appointee’s life expectancy. Though morbid, a death on the Supreme Court can be a major victory for the in-party. By introducing term limits, the health of a justice is not seen as a political advantage. Even with this advantage, term limits would increase the need for more appointments and approval hearings which could continue to fuel partisan conflict surrounding judicial appointments.
Even if there are benefits to these modifications, changes to the Supreme Court won’t happen anytime soon. Congress is so gridlocked that an arguably nonpartisan issue would not pass because it would immediately benefit the Democratic Party. The long-term effects could be positive, and eventually the judiciary could truly sit above the politics of the day, but it would have to be a bipartisan effort. With the current political state such a dramatic reform would no doubt be coupled with credit claiming and partisan division.
While structural changes to the Supreme Court are not likely to be proposed and passed anytime soon, distancing the Supreme Court from the political firefight would reestablish the respect Supreme Court justices deserve. Appointments are currently based on who the in-party approves, rather than who would best defend the law. The problem lies in the other two branches and the skewed nomination process. There is no realistically effective solution, but surely the lead Court of the country should be above partisan battles and strategies of party leaders.
[1]https://www.supremecourt.gov/about/constitutional.aspx
[2]https://www.washingtonpost.com/graphics/politics/policy-2020/voting-changes/