How to de-partisanize the Supreme Court

Nowadays appointments to the Supreme Court are a continuation of partisan politics by other means.

The major political issues of our time are fought out in lawsuits as much as they are in legislative debates or elections.   Maybe this was always true, but it seems to me that stacking the court is being done with much more awareness nowadays than in recent memory.

Self-described liberals do it.  Self-described conservatives do it.  Partisan judicial appointments have several bad effects.

It often happens that several Supreme Court justices reach retirement age during one Presidential term.  It means that President has a greater power than others to stamp his political ideas on the judicial system.

It gives a President an incentive to appoint relatively younger and less experienced judges to the Supreme Court because they will serve longer.  It gives aging and infirm justices an incentive to keep themselves on the bench until a President of their own political faction is appointed.

I propose the following Constitutional amendment to achieve a better political balance on the court.

Each President would have the power to make one, but no more than one, Supreme Court appointment during each two-year term of Congress, with the consent of the Senate.

The new Justice would be sworn in at the end of that term of Congress.

If there were no vacancies on the court, the sitting Justice who’d served the longest would retire.  

If there were more than one vacancy, the additional vacancies would be filled during the next term or terms of Congress.

What this would mean that each President and each Congress would have equal power to make a Supreme Court appointment once every two years.

This would not mean an end of partisanship, but it would mean a better balance.  It would mean that change in the makeup of the Supreme Court would take place over a long period of time and not all at once.

A Mitch McConnell might be able to stymie Supreme Court appointments during one term, but would not get power to make extra appointments during the next term.

The normal term of office of a Supreme Court justice would be 18 years.  That’s a reasonable length of time, but most Justices would be able to retire while in good mental and physical condition.

The fact that vacancies on the court would not always be filled promptly would be inconvenient. but the court has sat with fewer than nine Justices inn the past.

I don’t think there is any chance of such a proposal being adopted at the present time.  But if and when the two parties decide to call a truce, this would be a way to implement it.

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3 Responses to “How to de-partisanize the Supreme Court”

  1. whungerford Says:

    A partisan Supreme Court isn’t good, and some reform is needed. However, forced retirement doesn’t seem reasonable or effective, and unfilled vacancies aren’t good either. I suggest the justices should act responsibly as in most cases they do.


  2. sglover Says:

    This is an excellent idea, decades if not centuries overdue. I’m 60; if my tally is right there have been at least four instances of justices who were plainly way past their prime (if not genuinely incapacitated) — but by God they were going to hang on to the job until a president from “their team” got elected.

    As it stands now, the function and reputation of the judiciary is hostage to the longevity and whims of a few individuals. It’s the kind of practice that prevails in societies based on subsistence agriculture. Worse, corrosive as it is to the judiciary itself, it’s a major reason why American politics is evolving into a kind of death battle — which will only get worse, in the absence of sensible power sharing,

    “Forced retirement” is a very bizarre way to describe ending **lifetime** appointments, which are incredibly anachronistic, **not** mentioned in the Constitution, and not at all necessary to ensure judicial independence.


    • philebersole Says:

      The Constitution (Article III, Section 1) says that federal judges “shall hold their offices during good behavior.” So a Constitutional amendment probably would be needed to implement the full reform proposal.


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