How We Broke the Supreme Court

The bill for a 250-year-old mistake is just now coming due.

Welcome back to What Went Wrong?, a newsletter about the failures, inefficiencies, and screw-ups that define 21st-century American life, written by Harry Cheadle. This is the first in a series of stories about why the United States government isn’t looking so hot. Photo of the Supreme Court, our topic today, via Flickr user Glenn Beltz.

When it was revealed two weeks ago that Supreme Court Justice Ruth Bader Ginsburg's liver cancer had returned, liberals across the country cried out in agony. Partly this was because “RBG” has become a cult hero among many #Resistance members for her pathbreaking legal career, but it also hung a new specter over what was already an awful year: If she dies soon, Donald Trump will be able to name her successor on the Supreme Court, the third such appointment he will have made in four years. Barack Obama, in eight years, appointed a mere two justices. Republican-appointed justices already make up a majority on the court, but another one would shift the court's center of gravity further to the right and cement conservative control of one of the three branches of government for an entire generation. 

Competition for Supreme Court seats is a relentlessly zero-sum game and control over the court often comes down to the order in which the elderly justices die. Even discussing this stuff feels morbid, icky; liberals and conservatives sometimes must secretly hope that opposing justices die so they can be replaced by a friendlier choice. When liberals joke about donating organs and blood to Ginsburg, there's a hysterical edge of truth there—far too much depends upon that woman's liver. 

Instead of talking about Ginsburg as an individual, however, we should focus on the weird consequences of making Supreme Court posts lifetime appointments. The practice, unique to the United States, has created a set of warped incentives for everyone involved:

• Presidents are encouraged to nominate potential justices who are not just their ideological allies but also as young as possible—Trump's first two appointees, Brett Kavanaugh and Neil Gorsuch, are in their 50s. 

• Because a Supreme Court appointment could remain in place for decades, the stakes in nomination proceedings are high, and senators therefore do whatever they can to win. Obama only got to fill two seats on the court because in 2016 Republican Majority Leader Mitch McConnell took the unprecedented step of refusing to even hold hearings on whether to confirm the president's nominee, the relatively old and relatively moderate Merrick Garland. As Ezra Klein has pointed out in his book Why We’re Polarized, this was in many ways a rational move: If McConnell has the power to stop a Democratic appointment, why wouldn’t he?

• Supreme Court justices are incentivized to stay in their seats until they literally die or are otherwise incapacitated. In the past, some justices have been clearly unable to serve but continued on, sometimes hiding debilitating health conditions from the public. (To be clear, there's no evidence Ginsburg can't do her job.)

• Legal minds hoping to one day get a shot at the Supreme Court tend to follow a path as circumscribed as ancient Rome’s cursus honorum: law degree from Harvard or Yale, a clerkship with a powerful judge, a distinguished legal career that results in them being nominated to be a federal judge, then, if they are lucky, they'll be promoted the the Supreme Court by a politically sympatico president. “One result” of this dynamic, critics once wrote in Politico, “is a court that is regarded in scholarly circles for a high degree of legal craftsmanship, but fewer original thinkers.” Occasionally, lower court judges will even write attention-grabbing partisan opinions as a way to “audition” for promotions, underscoring how politicized the process is.

As American life in general has become more partisan, it makes sense that actors in this system have become more cutthroat. Supreme Court nominations are no longer simply rubber-stamped by the Senate; Trump's list of right-wing judges he would appoint, revealed in 2016, was an explicit appeal to conservatives. And as that partisanship has made passing major legislation nearly impossible in Congress, the Supreme Court is increasingly a major avenue for social change—not only can it approve or strike down a president's executive orders, but the court can choose to upend precedents or existing law, and it's used that power recently to deliver conservatives major victories.  

Lifetime appointments aren't the root of all these problems, but they introduce an element of unfairness and unpredictability that undermines the effectiveness and legitimacy of the court. How did the Supreme Court get this way?

Photo by Steve Jurvetson

Alexander Hamilton was wrong about something

When the U.S. Constitution was being written in 1787, there was little debate about lifetime appointments for federal judges (the actual constitutional language says judges shall hold their offices “during good behavior,” i.e. unless they are impeached). The rationale for this was explained by Hamilton in Federalist Papers number 78. The judiciary was going to be the weakest of the three branches of government, Hamilton wrote. Therefore, permanent appointments would secure the courts as “the citadel of the public justice and the public security.” The future musical protagonist went on to argue that term limits of any sort would make judges too open to influence from Congress, the president, or voters:

Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

Hamilton's concern that the courts would be co-opted by Congress or the presidency is one example of how the Founding Fathers were worried about too much competition between branches of the government they were creating. But they were wrong: The main competition in contemporary U.S. politics isn't between the branches, but between parties, who use the branches as battlegrounds. And the Supreme Court is hardly safe from partisan warfare. Justice Clarence Thomas is not just deeply conservative, but married to a far-right activist. Justice Brett Kavanaugh began his career as a right-wing lawyer before being rewarded with a federal judgeship and then a Supreme Court slot. Chief Justice John Roberts worked in the Reagan administration to weaken the Voting Rights Act, then three decades later wrote the majority opinion in 2013's Shelby County v. Holder, which invalidated a key part of the VRA and opened the door to a wave of restrictions on the state and local level that made it harder for people of color in particular to vote.

People still make arguments about how lifetime appointments protect the independence of the Supreme Court. Imagine if a justice was involved in deciding a case in favor of a large corporation, then went to work for that company in a lucrative post-SCOTUS career. Or what if a justice used their platform to attract attention for a future political campaign? These are legitimate concerns, but it's not as if the justices are currently making decisions in a virtuous vacuum of legal reasoning and logic—in many cases they can't even be really described as being *influenced* by partisanship, because they are partisans themselves. 

Another thing the Founders likely didn't foresee is the way the Supreme Court's reach has grown over the centuries—in the past 47 years the justices have issued rulings that have legalized abortion and gay marriage, limited the power of the Voting Rights Act and unions, and made campaign finance reform all but impossible. Nor could people in the 18th century have predicted the advancements in science that now allow people to work into their 80s. Taken together that means that the court is more politicized, more powerful, and made up of justices who serve for longer than it was originally intended to be. That, say reformers, is a disaster. As a pair of law professors wrote in 2005:

We believe that a regime which allows high government officials to exercise great power, totally unchecked, for periods of 30 to 40 years is essentially a relic of pre-democratic times. While life tenure for Supreme Court justices may have made sense in the 18th Century world of the Framers, we believe it is inappropriate in our day and age, given the enormous power that Supreme Court justices have now come to wield and the essentially arbitrary way in which many of them wield it.

The solution is clear, but we can't get there from here

People have been trying for decades to change the Supreme Court lifetime tenure rule, often motivated by concerns about justices becoming senile. The law professor David Garrow detailed some of these efforts in a 2000 article:

• In the 1930s, when President Franklin Roosevelt's advisers were trying to figure out what to do about their New Deal plans being blocked by conservative Supreme Court justices, some considered pushing for a constitutional amendment requiring judges over 70 to retire, a plan that had some congressional support. Instead, FDR decided to attempt to appoint additional justices, a “court-packing” plan that backfired and became one of his biggest political defeats. 

• In the 50s, the American Bar Association advocated reforms aimed at protecting the Supreme Court from future political interference, a package that included a mandatory retirement age of 75. Conservatives in the Senate who remembered FDR's court-packing effort supported the reforms, but after the Supreme Court made a series of rulings mandating desegregation and invalidating anti-communist measures, right-wing senators suddenly decided maybe judicial independence wasn't a bedrock principle of theirs after all.

• In the early 70s, Georgia Senator Sam Nunn introduced a bill that would make it possible for the  United States Judicial Conference, a body of judges, law professors, and other legal professionals, to remove any federal judge, including a Supreme Court justice, if they were “unable to discharge efficiently one or more of the critical duties of his office by reason of a permanent mental or physical disability.” But this might have required a constitutional amendment, and like the other reform efforts, never went anywhere.

Today, many reformers have coalesced around the idea that justices should be appointed to 18-year terms, with a president being allowed one appointment every two years. Justices forced into retirement could serve on lower courts and be recalled to the Supreme Court in the event of a death or a recusal that leads to a split decision. If this system had been in place since the George W. Bush administration, Bush would have gotten four appointments, Obama would have gotten four, and Trump would have gotten two in his first term as the two most senior justices retired. The composition of the court in terms of liberals and conservatives wouldn't be any different, but Ginsburg and Stephen Breyer, both Bill Clinton appointees now in their 80s, would have been replaced by presumably younger Obama choices and liberals wouldn't be in a panic about Ginsburg's health. And in the future, the ideological composition of the Supreme Court would roughly mirror the results of presidential elections.

That seems like a clear improvement on the current system. But past reform efforts have petered out from lack of interest, and it seems unlikely bordering on impossible that Congress would come together to pass a bill aimed at improving what is ultimately a fairly technical change in how the judicial branch operates. There are a host of far more urgent-seeming problems (like the pandemic), and Congress struggles to address those—how is it going to ever tackle something like Supreme Court tenure?

The worst is yet to come 

Preserving the status quo means risking a constitutional crisis in the near future. For the past several years Chief Justice Roberts has sided with the court's liberals in a few high-profile cases: He switched his vote in 2012 to avoid ruling Obamacare unconstitutional, for instance, and this year voted with narrow majorities to uphold protections for young undocumented immigrants and strike down an anti-abortion law passed by Louisiana. These decisions are typically seen as evidence of Roberts's desire to avoid breaking recent precedents or looking like a purely partisan hack; he clearly wants to uphold the court's political legitimacy.

If Trump gets to place another conservative (or two) on the court, however, Roberts will no longer have the swing vote and won't be able to restrain its rightward tilt. The justices could decide to overturn Roe v. Wade and make abortion illegal under federal law. Or conservatives on the court could decide that future legislation and executive orders enacted by a Democratic administration are unconstitutional. What if a President Joe Biden takes action to reduce carbon emissions only for five justices to decree that he can't do so?

In that circumstance, not only will the justices be unelected, they will have been mostly appointed by a president in Trump who got 3 million fewer votes than Hillary Clinton. The Supreme Court could come to represent a profoundly anti-democratic roadblock on what is already a fairly undemocratic lawmaking process. Some left-wing thinkers have preemptively called for a new court-packing effort should that worst-case scenario unfold, which would more or less destroy what's left of the court's reputation. There’s potential for the whole process of judicial review to spin out of control very badly.

Even if that doesn't happen, the court seems destined to drift along with the rest of our country and government into a more partisan future, where political fights over confirmations will be more and more vicious and key policy decisions will be determined in part by which of the court's septuagenarians or octogenarians dies next. The people who wrote the Constitution could have avoided some of these problems but they didn't anticipate them; we now know what the problems are but are politically paralyzed and unable to fix anything. 

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