ED MAIXNER: Let’s Have A 21st Century U.S. Supreme Court

Amidst Congress’ partisan hostility, Americans who favor U.S. Supreme Court reforms can’t expect expansion or other structural changes soon.

In fact, months before President Joe Biden named his commission in April to broadly evaluate possible judicial system revisions, he declared he wouldn’t “turn the Supreme Court into just a political football” with abrupt changes, and House Speaker Nancy Pelosi declared she won’t press for Court expansion, despite a Democratic House bill to do so.

Besides, Senate Republicans won’t allow their hard-earned Supreme-Court-packing trophy to be sullied after winning the Court’s six-to-three majority last fall. Their achievement came in refusing President Obama’s 2016 Supreme Court nominee even a hearing during his last year in office, then approving three of President Trump’s, including his last just weeks before he lost his re-election.

Two facts of prologue here:

  • The U.S. Constitution leaves the number of U.S. Supreme Court justices up to Congress, which expanded the seats to nine in 1837 to align with the number of federal judicial districts it had created.
  • Neither does the Constitution prescribe lifetime terms for the justices, though many say that’s inferred in an ambiguous phrase declaring federal judges “shall hold their offices during good behaviour.” But others have proposed legislation to set 18-year terms.

Nonetheless, most Americans want modernization and reforms for the cozy band of nine lifetime judges who have mostly written their own rules since our nation’s infancy.

The court needs an array of changes, including a code of ethics. No kidding, the Fab Nine don’t have one for themselves.

Conceptually, however, two reforms are priority. Both are desirable, but either would improve the court and the appointment process significantly on its own.

  • First, legislation allowing whoever is president at the start of the 2025 term to add one associate justice and allowing a further addition at the start of successive presidential terms, reaching the full number Congress would prescribe.
  • Second, limit Supreme Court terms to a staggered 16 or 18 years and let the justices continue to serve the federal courts in a senior status thereafter, if they wish, until their own voluntary retirement or death.

A constitutional amendment may be needed to limit length of terms, but a Supreme Court appeal would likely be sought to challenge a congressional act limiting terms, asking the justices to rule on their own lifetime tenure. How impartial is that?

Also reforms listed above aren’t exclusive. Jim Jones, former chief of the Idaho Supreme Court, for example, suggested an attractive alternative that would limit terms and have justices rotating to senior status as the court seats remained at nine.

An Ipsos poll for Reuters in April found 63 percent of adults support such limits while just 22 percent opposed. Another, by PSB Insights last year, found 77 percent would limit terms; 23 percent wouldn’t.

In fact, even Chief Justice John Roberts, as a young attorney, suggested 15-year terms would be “healthy” to “provide a more regular and greater degree of turnover among the judges.”

Through U.S. history, Supreme Court nominees have been typically in their early- to mid-50s, and from 1882 through 1957, a Brookings Institution report explains, nearly all justices served only 10 to 15 years on the court before death or retiring. Justices died younger back then.

But since about 1960, the length of service has risen to more than 26 years, on average, and President Trump nominated two judges under 50 years old, as Republicans dug in to slant the Supreme Court for as long as possible.

The result: Justices likely to serve 30 years or more.

The Constitution assigns the selection of the justices primarily to the president, and reform is needed in large part because the Senate has demeaned its role of examining and consenting; instead holding a pitched partisan battle over each nomination.

Older Americans might recall the Senate used to proceed sensibly. Examples:

  • Justice Antonin Scalia, the Court’s archetypal conservative for decades, was nominated in 1986 by President Reagan in the 99th Congress when Republicans held just 52 seats, but he received 98 Senate votes.
  • Justice Ruth Bader Ginsburg, the late progressives’ darling, was nominated in 1993 by President Clinton, when Democrats held about a five-vote margin, and 96 senators approved her appointment.
  • Even as recently as 2005, the Senate swept in Roberts, nominated by President George W. Bush, with 78 votes.

Finally, though the nine justices now include women and minorities, the court should better reflect the breadth of a heterogeneous country of over 330 million people.

Let’s remember the Senate started with 22 members (representing the first colonies to join the union), the House, 59, and the U.S. population has grown by 1,840 percent since Congress set the court’s seats at nine in 1837.

Consider other panels overseeing national policy: the Senate’s own Judiciary Committee has 22 members; the House Judiciary Committee, 44. The Federal Reserve’s Open Market Committee, which oversees and directs national monetary policy and credit, has 12.

With any luck, Biden’s commission will point to a good starting point for the court’s needed changes

4 thoughts on “ED MAIXNER: Let’s Have A 21st Century U.S. Supreme Court”

  • lillian bachmeier May 19, 2021 at 1:46 pm

    Very good article, you are well informed

    1. Ed Maixner May 20, 2021 at 10:03 am

      Thank you, Lillian. Maybe a tiny start to reform for SCOTUS in our lifetime?

  • Tim Mathern May 19, 2021 at 4:47 pm

    You make some great points, so much of public policy is now determined by the supreme court. It is crucial that it be be structured to meet this modern role.

    1. Edward Maixner May 20, 2021 at 10:01 am

      Thank you, Tim. Maybe our grandkids will live to see SCOTUS revisions?


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