When it comes to shaping our country’s future, the most important people aren’t President Trump or his presumed challenger Joe Biden. Instead, they’re the doctors who treated Supreme Court Justice Ruth Bader Ginsburg this week for an infection at Johns Hopkins Medical Center.
The latest illness of the 87-year-old four-time cancer survivor serves as a stark reminder that the way Supreme Court seats are vacated and filled makes no sense. Democrats are betting that Biden wins the election and can pick a liberal justice when Ginsburg leaves the bench. Republicans are hoping that Trump will get a pick that will lock in a right-wing agenda for decades. Clearly, the way Supreme Court justices serve needs to be reformed.
Although lifetime tenure for justices was established in Article III of the Constitution, the effect of this rule has changed dramatically in recent decades. As recently as 100 years ago, Americans could expect to live about 53 years. Today they can expect to live to about 79 — and those who have access to the best possible health care, a group that includes Supreme Court Justices, can expect to stick around even longer. As a result, since the 1950s, the average age at which a judge leaves the court has risen by 10 years.
Meanwhile, as our country has become more polarized, presidents have begun nominating younger justices in the hopes of keeping their picks on the bench as long as possible. The strategy works. Writing for the Harvard Business Review, David Fishbaum found that “the average tenure of justices is likely to increase to 35 years on the bench over the next century, compared with 17 years over the previous 100 years.”
The upshot of all this is that appointing a new Supreme Court justice — already one of the most consequential things a president can do — will become far rarer and more consequential in the coming decades. Fishbaum estimates that over the 100 years beginning with Trump’s inauguration, just 25 Supreme Court justices will be confirmed — a nearly 50 percent decrease from the prior century. And as the number of new justices per president declines, their rulings will be increasingly susceptible to illness and accidents, of their colleagues. If presidents pick just one new justice per term, an untimely departure from the bench would double their influence over the court, potentially altering our country for decades.
The good news is that this grim arrangement can be ended, and it doesn’t require a constitutional amendment to do it. Congress can pass a version of term limits for justices without running afoul of Article III. Gabe Roth, founder of the nonpartisan group Fix the Court, points out that nothing in the nation’s founding documents says where judges have to serve. Roth thinks Congress could pass a law declaring that one Supreme Court justice will be nominated every two years; at the end of an 18-year term, he or she would remain on the federal bench but would be rotated to a lower court, making way for a replacement. This would guarantee each president the chance to appoint the same number of Supreme Court justices. At the same time, by limiting justices to 18-year terms, presidents would feel more free to choose the nominee they think would best serve the American people’s interest, rather than going with whoever is youngest and in the best health.
A second way to fix the nominating process would be to expand the total number of seats on the Court. The appeal of such an expansion is rooted in simple math — the more justices, the less a single retirement or death matters to the court’s overall composition. Many other countries have high courts that are far larger than nine members — America itself had 10 Supreme Court justices during the 1860s — so there’s no particular reason, other than tradition, to stick with the current number. At a time when Americans are rightly concerned about systemic racism in our institutions, expanding the number of justices would have the side benefit of making it easier for the court to look more like America.
Expanding the court can play another important role as well — if politicians take advantage of the rules surrounding judicial vacancies and appointments to pack the courts, the number of seats should be expanded to retroactively thwart their court-packing plans.
This is not a hypothetical scenario. Antonin Scalia’s seat became vacant after his unexpected death four years ago, and Senate majority leader Mitch McConnell shattered previous norms by refusing to consider his replacement. If longstanding norms had been respected, liberals would currently hold a 5-4 Court majority. Instead, Trump was able to appoint Justice Neil Gorsuch and extend conservative control. This kind of behavior undermines the court’s integrity. If Democrats gain the ability to pass legislation after the November elections, they should expand the Court to at least 10 seats as a way to disincentivize these kinds of attacks on judicial independence going forward.
More than any other branch of government, the courts — and the Supreme Court in particular — gain their power from the public trust. Yet today, lifetime tenure for justices, and the strange and morbid circumstances that result, threaten to undermine that trust. When nominees are increasingly deciding with an eye toward actuarial tables, when the fate of the institution meant to stand for careful deliberation is increasingly determined by random chance, the entire country suffers.
For now, we can all wish Justice Ginsburg a speedy recovery. But going forward, there’s no reason the fate of a nation should so often rest on a single judge’s health — even one as tough as RBG.
David Litt was a speechwriter for President Barack Obama and is author of “Democracy in One Book or Less.”