Orin Kerr twitted his proposed 28th Amendment to the United States Constitution.
The 28th Amendment to the U.S. Constitution.
(Just my proposal.) pic.twitter.com/REtfTGBWJE
— Orin Kerr (@OrinKerr) September 21, 2020
The key provisions for the long term are sections 1 and 2, with section 3 needing some work, as well as leaving a bunch of other issues out, such as how we would transition from our current life-tenured appointment to the new 18-year term. My reaction to Orin’s idea was short and a wee bit snarky.
There’s nothing like amending the Constitution at a time when calm minds and unity of purpose prevail.
Since the passing of Justice Ruth Bader Ginsburg, the legal and political world has been beset by all manner of craziness, from hypocritical shrieks and finger pointing to raw power plays to abject denial of reality. That the death of one justice, and the appointment of another, would give rise to this level of anger and hysteria is a reflection of the sorry state of our tripartite government.
A president so loathed, a Congress so paralyzed, that the significance of the Supreme Court’s putative split between its liberal and conservative members, a split that exists more in people’s fevered dreams than in the reality of the court’s rulings, is paramount. The Supreme Court should never be this important. The survival of a nation was never meant to depend on a court. And most importantly, the Supreme Court was never created to be the government of last resort.
My snarky reply to Orin wasn’t intended to suggest that the core idea of reforming the terms of Supreme Court justices wasn’t a good and worthy one, but that we’re at a moment in time when the overarching concern is less “what’s good for the nation” or even “what’s the best way to handle Supreme Court nominations to avoid this untenable level of partisanship.” When I wrote “unity of purpose,” I meant a sincere goal rather than what’s motivating almost all current discussion: How can I game whatever arguments I can muster so that either my team wins the game or the other team loses.
Pack the court? Add Puerto Rico and District of Columbia as new states? Indict Barr to tie up the Senate? All these proposals are motivated at the moment to game the current Senate and Executive’s position of power. If they have the votes, they can do as they please no matter what it is. If you don’t have the votes, you come up with ways to undo, circumvent, outdo what they can do because they have the power to do so.
The point is that any proposal, standing alone, might well be a good or bad one, and will have arguments for and against it. But at this volatile moment, they’re not being raised and argued because they’re good ideas, but because it’s a way to fight the current Battle of Hypocrites’ Hill. And if the tables were turned, there is little sincere doubt that the teams would flip on a dime, switch their positions and arguments with the same pretense of passion and sincerity as they display now. Changing the heads on the corpses, as usual.
But the 18-year term proposal is hot right now for a slightly different reason than most of the other proposals. It’s not a new idea and gets raised every time a Supreme Court seat opens, because there is invariably a battle, often a scorched earth conflict that inflicts a terrible cost on the person who subjects themselves to public scrutiny and hatred. And the will to address the problem fades as quickly as it arises after the nomination is confirmed.
We have short attention spans, trouble focusing and the memory of a gnat. As soon as the extremis has past, we’re on to the next catastrophe and the one just past, that consumed every fiber of our being, is ancient history. Until the next time, when we play it out all over again.
Law prof Steven Calabresi has an op-ed in the New York Times, following on a law review article dated 2005 and published in 2006, proposing the switch from life tenured terms of office to 18-year terms, staggered every two years so that every president gets to pick a justice in his first and third year. It’s offered as a mechanism to end the “poisonous politics” of the moment, and to “depoliticize” the Court.
Supreme Court justices often try to retire during the presidency of someone sympathetic to their jurisprudence. Of course, that doesn’t always work: Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama, and Justice Ginsburg died after nearly 27 years trying to outlast President Trump.
Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law. It may even change the way the justices view themselves.
As Calabresi goes on to point out, Supreme Court life tenure leads to all manner of internal gaming, such as justices remaining beyond their intellectual and physical “expiration” date, and assuming a personal self-image of importance far beyond that one would find acceptable in a person holding a position of public trust.
The idea of finally fixing the number of justices to end cries of court packing, and limiting the term of office to one term of 18 years so that every president gets to appoint two justice, has enormous virtue. The collateral questions, how to transition from our current court to the new regime and how to fill vacant seats due to death, disability or resignation, remain problems of a similar magnitude as the current crisis over filling Justice Ginsburg’s chair.
It’s not a question of whether or how it could be done. No doubt it could. If only the decision were made by people with calm minds and unity of purpose, we could fix a lot of what ails us. Unfortunately, it seems we never care enough to do so after the storm has passed.