Bringing Order to the Court

We are experiencing the first after-shocks of the 2016 election and they have been quite powerful, rocking people’s emotions, their sense of safety, for some even their sense of self.

As these reverberations retreat, more people will take comfort in the stance that, difficult as a Trump Administration may be to deal with, it will be gone in four, or at most, eight years.

True enough.  But I think we’ve paid insufficient attention to the damage that has already been done to our institutions, those pillars of democracy that the republic must continue to rest on long after Donald Trump returns to his tower.

Chief among these is the Supreme Court, the branch of government that is supposed to be above it all, protecting us from legislative overreach and presidential tyranny.  Even in this era of extreme politicization, the Court is still seen favorably by 45% of Americans.

Then came the death of Antonin Scalia.  Most of us, whatever our political persuasion, expected our institutions to work.  The questions were about whether the president’s nominee would be a person of color, would he name another woman, and just how centrist would his or her track record be.  It was a foregone conclusion that there would in fact be a confirmation process.

Instead, Senate Republicans categorically refused to advise and consent. They tried excuses that ranged from the absurd (Obama has only eleven months left in his term) to the extreme (the country must be protected from a liberal Court).  Meanwhile, the media, which in the past twelve months has so often abrogated its responsibility to maintain an informed citizenry, treated the Senate’s refusal to grant Merrick Garland a hearing and a vote like just another entertaining chapter in the saga of our national politics.

But like when the Titanic first hit the iceberg, neither they nor we have yet fully understood how much damage has been done.

The nation has always demonstrated a great deal of buoyancy in confronting the events and forces that try to tear it down.  We are kidding ourselves, however, if we believe it cannot sink.  It is safe to say that the new president will nominate someone other than Garland.  When that happens, a large swath of the country will likely see the nominee as illicit.  And how can we blame them?  Many will have voted for Barack Obama, with the legitimate expectation that, having won the election, he was entitled to govern.  As the old saw says, elections have consequences.

So not only will the next nominee be seen by many as a usurper, but the Court’s very legitimacy will be compromised.  How can any decision it makes under these circumstances not bear the stink of an election undone?

Of course, we cannot turn back the clock.  But we can move to protect the future. We must remove the lifetime appointments of Supreme Court justices.  There are a number of models that have already been lengthily discussed.  My personal favorite was described by Norm Orenstein, writing in The Atlantic:

I would like to have single, 18-year terms, staggered so that each president in a term would have two vacancies to fill. Doing so would open opportunities for men and women in their 60s, given modern life expectancies, and not just those in their 40s. It would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.

That's not to say that this idea is easy to implement.  For starters, it will require a Constitutional Amendment.  There is also the issue of transition, which Jonathan Adler discussed earlier this year in the Washington Post:

Do we temporarily increase the size of the court? Allowing a new justice every two years for 18-year terms, while leaving current justices in place? That’s allowable, insofar as the Constitution does not set the size of the Court, but it would mean that the court would go through a potentially lengthy period of consistently changing size. Justice Elena Kagan, for instance, might stay on the court for another 30 years, meaning such a proposal would create a court of 10 or more justices for decades into the future.

 
These are legitimate obstacles that must be overcome. But the status quo is not an option. The Court has been weaponized and we must defuse it before it tumbles into the abyss, and the republic with it.