Reforming The Supreme Court Should Be A Top Priority in 2016

Gabe Roth Executive Director, Fix the Court
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Looking at the issues being debated as part of the 2016 presidential contest, it’s clear that conservatives across the county believe that constitutional government and fundamental liberties are under attack.

In some cases, conservatives will blame this on poor leadership in elected office. In others, they’ll blame unaccountable judges making decisions based on politics and not the law – including the most powerful, least accountable ones who sit on the U.S. Supreme Court.

Criticize President Obama for his use of executive orders, or fault Congress for failing to pass good laws or repeal bad ones, but the bottom line is that nine individuals are dictating more and more over our lives, in matters ranging from the crucial to the mundane. Sometimes, their judgments are good. Sometimes, they are bad. But most often, they are made in the wrong forum and by people who should have relinquished their unchecked power long ago.

In stark opposition to the system of checks and balances our founders envisioned, today’s Supreme Court is acting like a superlegislature whose decisions on where we can pray, who can vote and what regulations our businesses face are final and above congressional review. There existed for decades a give-and-take among the parts of our government, but the concept of co-equal branches has perished, with the justices now reaching celebrity status and saying and doing whatever they want, no matter how biased, since they can serve for life under “good behavior,” a term that’s never been constitutionally defined.

What can be done to take the rebalance the constitutional responsibilities among the branches? Here is a simple yet elegant answer: ending life tenure at the Supreme Court. Life tenure may have made sense in the early days of the republic, when demographics (life expectancy in 1800 was around 45) and judicial customs (the nine used to hire carriages and “ride circuit” to stay connected to other parts of the country) differed greatly from today, but in our current circumstances, it is time to consider this (and other) reforms to make the justices more accountable.

In the 2016 presidential race, four Republican candidates have already declared their support for instituting term limits on Supreme Court justices. Former Texas Gov. Rick Perry, former Arkansas Gov. Mike Huckabee, Sen. Rand Paul of Kentucky and retired neurosurgeon Dr. Ben Carson have all spoken to the wisdom of restricting the reigns of lifelong justices to finite terms, as we already do with Presidents and many state judges and legislators.

Federalist Society co-founder Steven Calabresi, also a Northwestern University law professor and former clerk for Justice Antonin Scalia, has presented a proposal in which justices would serve only a single, non-renewable 18-year term. This is an ambitious suggestion yet one that has legs on the right side of the aisle – and support from two-thirds of the country regardless of ideology.

In the seminal article on the topic, Calabresi and co-author James Lindgren write of life tenure: “A regime [that] 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.” And it’s up to our democratically elected officials in Congress and the White House to institute greater accountability in the third branch.

The idea of asking Congress to reform the court is not a new one – in fact, Congress has changed the size of the Supreme Court on numerous occasions since our nation’s founding. (Nine justices seems to make sense at the present time.)

Earlier this year, Sen. Chuck Grassley of Iowa once again called for putting cameras in the courtroom so more Americans can be informed of the justices’ work. That reform is also favored by Rep. Steve King of Iowa and Rep. Ted Poe of Texas, himself a former judge, as well as a number of leading Democrats.

Sen. Grassley is also looking to establish an Office of Judicial Inspector General that would investigate allegations of misconduct by federal judges. And Sen. Murphy of Connecticut has introduced a bicameral bill that would require the justices to abide by the Code of Conduct for U.S. Judges, from which they are currently – and curiously – exempt.

But in order to make the justices truly accountable to the citizens, to ensure they end their entrenched partisanship and look to the law, and not some ideological doctrine, for guidance, ending life tenure is a sound solution – and, looking to the 2016 GOP field, a presidential solution, even – to solving the mounting problem of an unaccountable, out-of-touch Supreme Court.