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Reforming the Supreme Court is long overdue

Reforming the Supreme Court is long overdue

Reforming the Supreme Court is long overdue
October 06
10:00 2020

In the wake of Supreme Court Justice Ruth Bader Ginsburg’s death on September 18, the questions of who will replace the justice and the fears of landmark, civil rights cases being overturned flooded the Internet. 

Ginsburg became the third member of the Supreme Court to die in office in the past 15 years, giving President Trump a third Supreme Court nominee after announcing his nomination of Amy Coney Barrett on Saturday, according to a report from CNN

The death of one person in an unelected nine-member body seems to have triggered a political battle leading up to the 2020 presidential election and a heated discussion regarding the quick turnaround for confirmation hearings, civil rights protections and why we’ve given so much power to a judicial position U.S. citizens don’t even vote for. 

Moreover, with the death of Ginsburg, the political vultures circling our aging justices only emphasizes our many judicial issues, specifically the lifetime terms and the all-encompassing power of our Supreme Court Justices as well as the reform our judicial system desperately needs to better reflect it’s democratic values and society. The Supreme Court simply isn’t aligning with contemporary political systems anymore and given the gravity of this upcoming election, it’s imperative we examine the judicial system that holds more power than we give it credit for by reforming the lack of term limitations and other clauses in the Constitution. 

During the drafting of the U.S. Constitution, Alexander Hamilton wrote against “the imaginary danger of a superannuated bench” in The Federalist Papers and later won, writing the Good Behavior Clause into our Constitution and thus placing no term limits on federal judges, according to an article from The Atlantic

This Good Behavior Clause essentially “indicates that judges are not appointed to their seats for set terms and cannot be removed at will; removing a federal judge requires impeachment and conviction for a high crime or misdemeanor,” with the clause and section being largely left unchanged since it’s signing, according to the Library of Congress

At a time when the life expectancy for white males was approximately 41.4 years, although several of the framers lived well into their 70s and 80s, the thought of a federal judge serving for more than two decades wasn’t something they anticipated, according to a 2018 report from Slate. A lifetime in the 1700s is not the same as a lifetime in the 2020s, as shown by the exponential increase in life expectancy in the U.S., according to data from Binghamton University and the State University of New York

This isn’t to say  70- and 80-year-olds can’t be competent and well-informed judges, but rather, the waiting game for a judge to die is only fueling the partisanship the court claims to detest and the stakes are too high when justices are deciding on who does and doesn’t receive equal rights and protection for the next half-century in this country. 

Despite the Supreme Court’s self-proclaimed independence, justices have become aligned with a party and are staying on the bench longer, not leaving unless they’re replaced during a political climate that ensures a replacement aligning with their self-interests, according to a report from Vox.

Term and age limits aren’t new concepts, with proposals of 10, 12 or 18-year limits floating around Congress for years and being pushed by various lobbyist groups, such as Fix the Court

Term limits lower the likelihood of unexpected departures brought about by justices dying or retiring early. In addition, longer tenures mean justices are increasingly losing touch with the world outside the Court, and some reform proposals suggest justices could serve on lower courts after an 18-year term to “honor the constitutional promise of good-behavior tenure” and to gain more perspective on societal and judicial changes in American society, according to a report from the research group Brookings Institution

This arrangement would produce Supreme Court vacancies every two years once implemented and the regular turnover would deter young, less-experienced nominees to the court who might serve more than two decades. 

Other proposals call for increasing the number of Supreme Court justices, staggering terms and potentially voting for our justices, similarly to how we vote for our state and local level judges. 

Nevertheless, issues will arise no matter what kind of reform we as a nation decide upon, but the fact we rely so heavily on an increasingly aging, nonelected group of nine people to decide the rights of women, minorities and immigrants is concerning for a nation that boasts it’s governmental checks and balances system. 

In other democracies around the world, term limits and voting for judiciaries are widely common. Canada, Brazil, Australia, South Africa and Britain have term limits for justices on their country’s highest court and must retire by usually 70 or 75, according to a report from the Washington Post. Other countries like France and Switzerland are replaced or face reelection at the end of their three-year or six-year terms, respectfully. 

For a nation claiming to be the greatest and most advanced democracy in the world, there have been minimal changes to our judicial procedures since the nation’s conception,  moreover, we have little to no say in our Supreme Court appointees nor any changes in judicial processes. 

There is no question the Supreme Court Justices hold and balance a great amount of power in our judicial system, but at what cost? It is not a question of who holds the power, but what power the position holds in our judicial system. 

If we are to progress as a democracy and promote equity within our government, we must look inward at the processes and institutions that preside over our rights and freedoms.  

Featured Illustration by Austin Banzon

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Sarah Berg

Sarah Berg

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