The Supreme Court as we know it is an abomination, and this is a rare issue on which Americans from across the ideological spectrum should agree.
Whether you believe that liberal, robed tyrants have jammed gay rights and abortion and all manner of social ills down the throats of the American people, or you’re outraged by this conservative Court purposefully killing campaign finance laws and gutting the Voting Rights Act, the fact that five unelected individuals with lifetime gigs that insulate them from both popular and elite opinion can veto democratically enacted legislation should be intolerable.
But the problem with this creaky, increasingly illegitimate institution goes far deeper than that, as the farcical confirmation process we’re living through with Brett Kavanaugh illustrates quite clearly. What really distorts the purpose and fairness of the Court is that it’s become ever more explicitly partisan.
As historian Jill Lepore wrote for The New York Times this week, the Constitution “was understood by its framers as a machine, a precisely constructed instrument whose measures — its separation of powers, its checks and balances — were mechanical devices, as intricate as the gears of a clock, designed to thwart tyrants, mobs and demagogues, and to prevent the forming of factions.”
“Factions,” as they were known in the 18th century, are called political parties today. We have two branches of government — Congress and the presidency — that are inherently political and unavoidably partisan. In theory, the judicial branch should be a neutral arbiter of the disputes that arise between the federal government and the states, and among the co-equal branches of government. These disputes should be adjudicated by the best, most nimble legal minds in the country rather than by justices whose judicial opinions are easily predicted by their ideological and partisan leanings.
If the system were working as designed, Brett Kavanaugh would not be a nominee. Before he lied to Congress, and years before Christine Blasey Ford came forward to allege that he attempted to rape her in the 1980s, Kavanaugh was, as Mike Tomasky wrote for The Daily Beast, “a certain kind of lawyer. He was a very political, partisan, and ideological lawyer. He was, in fact, a political operative with a J.D. degree.” As an example, Tomasky details how Kavanaugh, when he was working for Ken Starr, “spent time and taxpayer dollars engaging in political vendettas and chasing down conspiracy theories.” Peddling nonsense about Hillary Clinton having had an affair with Vince Foster, a White House aide who committed suicide and then became an object of fascination within the fever swamps of the right, should be disqualifying for such a powerful and exalted intellectual position.
We’re now suffering through Potemkin hearings in which Senators act as if everyone doesn’t know exactly how Justice Kavanaugh would rule on the issues of the day. Back in July, Charlie Savage reported for The New York Times that Kavanaugh “spent the past dozen years embracing the philosophy of the conservative legal movement as he assembled a record on the powerful federal Court of Appeals for the District of Columbia Circuit… on issues as diverse as abortion and gun rights to disputes over national-security policies and business regulations, Judge Kavanaugh emphasized textual limitations while frequently favoring corporations over regulators, and the government over individuals claiming rights violations.”
While a polarized, insulated Court should be intolerable for people on both the right and the left, it’s especially problematic for progressives. Republicans have lost the popular vote for president in six of the past seven contests. They know they face demographic headwinds with an increasingly diverse electorate, and as a result, they’ve put an almost manic emphasis on controlling the Court. Conservative legal groups have spent tens of millions of dollars shaping the federal judiciary; Mitch McConnell held Antonin Scalia’s seat open for over a year to keep Barack Obama from appointing a successor.
Some on the left have urged Democrats to respond to that egregious theft by packing the courts if and when they regain power. The Constitution allows it, but doing so risks an endless tit-for-tat scenario, with Republicans responding in kind whenever the pendulum swings back their way.
Term limits are probably the most frequently discussed reform for the Court. But while killing lifetime appointments is necessary, it’s also insufficient. If Justices served for, say, 10-year terms, it would lower the stakes somewhat, and perhaps usher in some comity in the process, but it wouldn’t get to the core issue of selecting justices for their ideological commitment rather than the quality of their jurisprudence or legal scholarship. (Term limits are also Constitutionally questionable, although there are potential work-arounds for that issue.)
The time has come to seriously consider the possibility of scrapping the Supreme Court as we know it, and replacing it with a different structure entirely. As those who advocate packing the courts point out, the Constitution doesn’t spell out how many justices sit on the bench. Why not create a Court with, say, 30 of the top legal thinkers in the country, from which nine or 11 or whatever number are randomly drawn to hear each case? That would diminish the power of each individual on the court, and make different groups of justices with a wider range of experience engage one another’s arguments. And we should have them serve staggered, eight- or ten-year terms, so there’s a constant flow of fresh blood and fresh thinking to the Court, and a president can’t luck into reshaping the judiciary for decades to come just because he or she happens to be in office when a couple of Justices die or can no longer soldier on.
Just as importantly, we need to take the selection process out of the hands of the major parties. The Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” justices to the highest court, and that vague division of power leaves a lot of room for innovation. We might create a large, bipartisan Senate panel made up of top legal experts – law profs, retired judges – to screen potential nominees for the quality of their scholarship and past decisions, while weeding out mediocre or unoriginal thinkers and ideological hacks, and then have the president pick judges from the cream of the crop.
In any event, we should not view the anti-democratic arrangement we have now as natural or beneficial just because it’s been with us for hundreds of years. The election of Donald Trump has called into question all manner of issues that had been considered settled in the United States – from the virtues of capitalism to the benefits of international trade to the value of the unwritten norms that had long been honored on Capitol Hill.
Brett Kavanaugh’s demonstrably partisan background and the circus now surrounding his confirmation illustrate that it’s past time that we take a serious shot at ridding ourselves of this iteration of the Supreme Court and replacing it with a body that fulfills the purpose for which it was originally intended.