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Ideas | David Scharfenberg

Can the Supreme Court be saved?

(rob dobi for the boston globe)

PRESIDENT TRUMP’S NOMINATION of Brett Kavanaugh is the culmination of an unprecedented campaign by activists to build a reliably conservative majority on the nation’s highest tribunal.

Frustrated by a string of Republican appointees who drifted left, groups like the Federalist Society and the Judicial Crisis Network spent decades vetting lower-court judges, compiling lists of approved candidates, and lobbying GOP presidents to pick them.

If Kavanaugh is confirmed to replace swing justice Anthony Kennedy, as expected, the polarization of the Supreme Court will be complete: its 5-4 split between staunch conservatives and stalwart liberals not only reflecting Washington’s bitter partisanship, but encouraging more of the same.

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Indeed, with the country’s most difficult questions increasingly decided by razor-thin majorities on the tribunal, the incentives for a no-holds-barred approach to the confirmation process are only growing.

But the debate over changing the court is focused almost entirely on the power dynamics. How do we get another liberal on the court, or another conservative? There is almost no discussion of the deeper issue: the politicization of the highest court in the land. Almost no discussion of how we get closer to the original vision of the tribunal, as the relatively impartial arbiter of the American experiment.

The exception is a small group of legal scholars who have been pitching reforms for years now — drafting model legislation, proposing constitutional amendments, and writing thoughtful letters to Congress that are mostly ignored.

Perhaps it’s time to finally consider some of their ideas: term limits for justices, so they can’t strategically time their retirements to ensure that friendly presidents appoint their successors; bipartisan commissions that would vet potential nominees and screen out the ideologues; even an expansion of the court to 15 or 18 justices, so each nomination would be less consequential and more points of view would be represented on the tribunal.

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Some of the proposals would mark a radical shift away from the current setup. But many have been successfully tested in other courts — in Europe, Israel, India, and even the United States. And besides, the scholars argue, given the current state of the court, a little radicalism may be in order.

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The US Supreme Court.
The US Supreme Court. (Washington Post photo by Ricky Carioti)

THE FOUNDERS CERTAINLY didn’t envision a court riven by faction and dominated by justices serving decades-long terms. Life expectancy, in the late 18th century, was substantially shorter than it is now. And the first Congress set the court size at an even number — six justices — expecting the panel to rule by consensus.

That’s what the court did, more or less, for its first 150 years, deciding only a tiny sliver of its cases by one-vote margins. But then, in 1941, an Amherst-educated contrarian named Harlan Fiske Stone took over as chief justice and changed the culture. Dissent was encouraged. And over time, partisanship took hold.

During the Rehnquist and Roberts courts of the last several decades, fully one in five cases has been decided by a 5-4 margin — with conservative appointees usually voting in a bloc and left-leaning appointees doing the same.

Faith in the court has tumbled as it’s grown more partisan. Just 37 percent of voters tell Gallup they have a “great deal” or “quite a lot” of confidence in the Supreme Court. And tales of justices timing their retirements for political reasons haven’t helped.

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In the fall of 2000, then-Justice Sandra Day O’Connor and her husband John, a Washington lawyer, held an election night party at their home. When CBS anchor Dan Rather called Florida for Democrat Al Gore on a small black-and-white television set in the den, Newsweek reported, the justice exclaimed, “This is terrible,” and rose, with obvious disgust, to get a plate of food.

The O’Connors, her husband explained, wanted to retire to Arizona, where Sandra had once served as Republican majority leader in the state senate. Now, they would have to wait at least four more years until the end of the Gore presidency.

Of course, George W. Bush wound up winning Florida and the broader election, on the strength of a 5-4 decision by the Supreme Court. And O’Connor went on to announce her retirement a few years later, after Bush won re-election.

O’Connor is hardly the only justice suspected of such a maneuver. It’s come up with just about every retiring justice of recent decades, including Kennedy, the Reagan appointee whose departure will clear the way for Kavanaugh.

And one way to curb this practice, liberal and conservative scholars have argued, is to drop life tenure and put term limits in place. The most commonly discussed plan would have justices serve staggered, 18-year terms, with each president guaranteed two picks per term — perhaps one in the first year and another in the third.

Many scholars say a constitutional amendment would be required to institute term limits, though some argue Congress could take action on its own. Either way, the hope is that regular appointments, and shorter terms, would drain some of the sturm und drang out of the process — and bring a host of ancillary benefits, too.

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Shorter terms, for instance, could stem what scholars call “mental decrepitude” among elderly justices. There are plenty of stories. Justice William O. Douglas slurred his words and addressed people by the wrong names after a stroke. And Justice Thurgood Marshall got confused on the bench and watched daytime television, while his clerks picked up an inordinate amount of the workload.

Still, if there are several strong arguments for term limits, says Ward Farnsworth, dean of the University of Texas School of Law, life tenure has advantages that are often underappreciated — among them, bringing a measure of stability to American civic life.

Liberals may be fretting now about a conservative majority overturning Roe v. Wade, the 1973 decision that legalized abortion, Farnsworth says. But if Presidents Ronald Reagan and George H.W. Bush had been able to install a justice every other year under a term-limited system, they might have won a quick reversal in the 1980s. Then, of course, Clinton appointees might have restored abortion rights in the 1990s, lashing the country to and fro on a deeply divisive issue.

As it stands now, Farnsworth says, it takes sustained effort — multiple electoral victories over a long period of time — for a party to change the court and upend precedent. And that’s the way it should be, he says: “When the justices make a big decision, it should be hard to change.”

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Christopher Green, a University of Mississippi law professor, has at least a partial answer for that concern. He says presidents should be allowed to make new appointments to the high court every two or four years — but he wouldn’t require sitting justices to retire when the new ones come aboard.

We take it as a given, he says, that at the “very time somebody leaves, somebody new comes on.” But we shouldn’t. If we decoupled the comings and goings, Green says, we could get rid of strategically timed retirements while holding onto the advantages of life tenure.

Of course, an elastic court could grow quite large, at times. But there are plenty of examples of sizable courts that function well, from the European Human Rights Court in Strasbourg, France, to the United States’ own circuit courts of appeal.

Jed Shugerman, a Fordham University law professor, sees real advantages in a larger, more diverse court, given the size and complexity of the country. Cases are turning on ever-thornier questions of technology, bioethics, and finance, he says, and we are not well-served by a court with little training in these fields. The justices, he points out, don’t even have experience in electoral politics.

“It would have been helpful when the court was dealing with gerrymandering to actually have some politicians — some people with political experience in legislatures — thinking about that,” Shugerman says.

A larger court would also allow for shifting coalitions that could break the country out of its left-right stalemate — libertarians siding with liberals, in some cases, and center-left and center-right justices forging coalitions of their own in others.

Of course, talk of expanding the court can raise fears of “packing” — tilting the court by overloading it with justices of a particular political persuasion. That’s why it’s critical, Shugerman says, to pair expansion with a new, bipartisan selection process.

One of the more intriguing possibilities is a judicial nominating commission. Twenty-nine states use some form of commission — typically appointed by the governor, legislature, and state bar association — to vet potential judges and present the governor with a handful of candidates for each vacancy.

Commissions don’t entirely remove politics from the process; a governor’s appointees will always attempt to steer the panel toward candidates who broadly reflect their patron’s judicial philosophy. But they do have a moderating effect.

On the federal level, Shugerman says he could imagine a commission composed of the Senate majority and minority leaders, and the chair and ranking minority member of the Senate Judiciary Committee. Together, this “Gang of Four” could recommend three to five candidates for each Supreme Court vacancy to the president.

Making that list binding would probably require a constitutional amendment, Shugerman says, since the legislative branch would be placing a substantial limit on executive power. But the Senate’s constitutional duty to provide “advice and consent” on judicial nominations would almost certainly allow for a non-binding list.

Indeed, the constitution arguably demands a commission or something like it at the front end of the process. As Shugerman points, the Senate doesn’t provide much “advice” at all under the current system — only consenting, or declining to do so, after the president puts forward a nominee.

There are plenty of other proposals for improving the Supreme Court, including a requirement that the tribunal vote 6-3 or 7-2 to overturn a law — forcing more consensus — or a return to an even number of justices.

David Orentlicher, a University of Nevada Las Vegas law professor, likes the idea of an even-numbered court. And he suggests that half the seats be reserved for Democratic nominees and half for Republicans.

Orentlicher, a former state legislator in Indiana, says one of the biggest problems with American politics is our winner-take-all system. A liberal president takes office with 51 percent of the vote, and half the country feels shut out. Conservatives build a 5-4 edge on the Supreme Court, and the other half is alienated.

He suggests a more bipartisan approach at all levels of government. But the court, which is supposed to be above partisan politics anyhow, may be the best place to start.

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HOW TO TURN these ideas into actual change?

Orentlicher says reformers should start local. Get a purple state to experiment with a truly bipartisan court, for instance, and build from there.

But the truth is, the states have engaged in some pretty significant experimention, already. In New Jersey, three seats on the state’s high court are reserved for Democrats, three for Republicans, and one for the governor’s party. And on the Nebraska and North Dakota courts, supermajorities are required to find a law unconstitutional.

None of it has done much to spark a conversation around reforming the Supreme Court. And policymakers seem wholly uninterested in what other countries do.

Sanford Levinson, a University of Texas law professor, calls it the downside of American exceptionalism and our reverence for the constitution. “We assume that decisions made in 1787 are just controlling,” he says, “and that there’s nothing to learn from anything that happens around the world, or in California, New York, and Massachusetts.”

Changing that perspective may require a true crisis — say, Democrats taking control of the Senate in this fall’s elections and refusing to confirm any of the president’s nominees for the remainder of his presidency.

We may have to get to the point, in other words, where the appointment is so politicized, it’s completely broken. Maybe then, the country could look more closely at state-level models. Maybe then, the states could try to impose those models on the Supreme Court through the constitutional amendment process.

And as that process picked up steam, perhaps the Senate could be convinced to take action of its own. To edge the Supreme Court back to what was originally intended. To drain some of the partisanship out of our hyper-partisan government.


David Scharfenberg can be reached at david.scharfenberg@globe.com. Follow him on Twitter @dscharfGlobe