Article Analysis #7- The Judiciary

10/15/2018 America’s highest court needs term limits - The Supreme Court

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The Supreme Court

America’s highest court needs term limits

Deepening partisanship is bad for the court and bad for America

Sep 15th 2018

Print edition | Leaders

THE judiciary, wrote Alexander Hamilton in Federalist Paper 78, “may truly be said

to have neither FORCE nor WILL, but merely judgment...[It] is beyond comparison

the weakest of the three departments of power.” For much of American history,

politicians saw the Supreme Court as a backwater. John Rutledge, one of the �rst

10/15/2018 America’s highest court needs term limits - The Supreme Court

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justices appointed by George Washington, resigned to become chief justice of

South Carolina. Not until 1935 did the court have a building of its own. Today it

occupies a central and increasingly untenable position in American life (see

Brie�ng).

The centrality stems largely from gridlock. As Congress has grown incapable of

passing laws involving even straightforward political trade-o�s, power has �owed

to the executive and judicial branches. Political questions best settled by the ballot

box—about abortion, for instance, or gay marriage—have become legal ones settled

by nine unelected judges.

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The untenability stems from the court’s growing partisanship. It was not always

thus. Republican presidents appointed three of the 20th century’s greatest liberal

jurists—Earl Warren, William Brennan and Harry Blackmun—as well as Anthony

Kennedy, the recently retired “swing vote”. But today the court’s four conservative

justices were all appointed by Republican presidents, the four liberals by

Democratic ones. The nomination process has grown ever more poisonous.

Like a bar �ght, it is hard to be sure who started it, but each punch leads to

retaliation. Republicans point to Democratic tactics during the hearing for Robert

Bork, a Reagan nominee. Democrats are the victims of the most recent blow—

which was also the most shameless. In 2016 Republicans refused even to hold a

hearing for Merrick Garland, whom Barack Obama had nominated, denying the

president a power that is granted to him under the constitution, and allowing

Donald Trump to �ll the seat instead.

Mr Trump’s second Supreme Court justice, Brett Kavanaugh, will be con�rmed only

because Republicans hold a two-seat majority in the Senate. Should they lose that

majority in the Senate this autumn, and should another Supreme Court seat before

long open up, Democrats will probably prevent Mr Trump from �lling it. The norms

that Republicans created for Mr Garland will be used to justify their behaviour. And

on it will go.

This partisan ratchet is bad for the judiciary and bad for the country. It risks

hobbling the court, in two ways. First, if the only time a president can �ll a seat is

when his party controls the Senate, then the court will spend long periods at less

than full strength. Second, the court’s legitimacy depends on its reputation as a

credible neutral arbiter.

The judgments of a court seen as just another nakedly political body, no di�erent

from Congress or the presidency, can easily be dismissed—or fought. Franklin

Roosevelt mulled packing the court in the 1930s when it frustrated his New Deal

ambitions. It is not hard to imagine a Democratic president and Congress doing the

same in four years’ time, if �ve Republican-appointed justices repeatedly strike

down the ambitious social programmes these politicians promised.

10/15/2018 America’s highest court needs term limits - The Supreme Court

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Sep 15th 2018

Print edition | Leaders

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About The Economist

Breaking this cycle requires reform. Some have proposed radical solutions, such as

making all of the roughly 180 federal appellate judges associate justices, and having

nine of them drawn at random to hear and choose cases at the Supreme Court for a

limited period—a term, at most. Defenders argue that this would make the court

more deferential to precedent, and any one judge less able to spend years cutting a

partisan path across the nation’s highest court. But it could also just push the

political brawling down a level, so that every appellate nomination becomes a

bloodsport. In any case, it is probably too drastic a change to be feasible.

A more workable change would be to appoint justices for single 18-year terms—

staggered, so that each president gets two appointments per term—rather than for

life. Each presidential term would thus leave an equal mark on the court, and no

single justice would remain on the bench for 30 or 40 years. New blood would

make the court more vital and dynamic. A poll taken in July showed widespread

bipartisan support for term limits. So long as former justices were prevented from

standing for o�ce, becoming lobbyists or lawyers after stepping down from the

court, this would be an improvement.

Some fear that term limits would simply entrench the court’s political centrality by

making it an issue in every election. But that bridge has already been crossed. “You

have to vote for me,” Mr Trump told a rally in 2016. “You know why? Supreme Court

judges. Have no choice.”

What better way for Americans to start �nding a path back towards civil politics

than reminding themselves that bipartisan institutional reform remains possible?

This article appeared in the Leaders section of the print edition under the headline "Weak is strong"

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