Why the Supreme Court is Broken and the Surprisingly Easy Way to Fix it

October 17, 2022 Why the Supreme Court is Broken and the Surprisingly Easy Way to Fix it

According to the most recent polling, trust in the Supreme Court has dropped 22% in the last three years.

For the previous half century, trust varied between 60% and 80%, dipping only once to nearly 50%. Now for the first time, a majority of Americans distrust the Court.

Of course “the Court” refers to the institution, not the changing roster of individuals who embody it.

The members of our current Court were appointed by five different presidents over the last thirty years.

Because appointments are for life, and Justices are free to retire at any time (typically timed so their replacement is appointed by a president of their political preference), there’s no predicting how long any particular Justice will serve. Also, two of the last four vacancies were due to deaths. As a result, it’s impossible to predict how many Justices any given president will replace.

Looking at the last three decades, the average is two per president.

At first glance, the distribution appears roughly even. Sure, Trump has the most, but only by one compared to his three predecessors.

But then consider the number of terms each president served.

Add a couple more decades, and the results are similar.

Yes, Reagan appointed one more Justice than Trump, but he was in office twice as long.

The disproportionate distribution is more obvious when you calculate Justices per presidential term.

Reagan and then Bush appointed two Justices during each of their terms, at least twice as many as their two predecessors, as well as their next three successors.

But that imbalance is minor compared to Trump’s three appointments.

Though appointments are unpredictable and often a result of luck and happenstance, Trump’s weren’t. The intentional disproportion was orchestrated by Mitch McConnell, who refused to allow a vote on Obama’s appointment after Scalia’s death almost nine months before a general election, and then rushed through Trump’s appointment after Ginsberg’s death less than nine weeks before the next general election.

Without McConnell, Obama and Biden would each have one additional appointment.

If McConnell had instead undermined the Court only once under Obama, the distribution would still be fairer.

Instead, the McConnell packing has produced a Court deeply out-of-sync with the American public because three of its members were selected by not simply a one-term president but by the only president in US history to lose the popular vote by 2%.

That president also made his goal explicit. Trump said during a 2016 debate: “If we put another two or perhaps three justices on, [overturning Roe] will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.”

As a result, 66% of the McConnell-Trump Court voted to overthrow Roe, even though only 35% of the US population agreed. Gallup shows consistent Roe support.

Roe reflected the will of voters as expressed through presidential elections of at least the last three decades.

The randomness of Court openings thwarts that will. It is explicitly anti-democratic. No other government official decides the duration of their own term with no means for voters to replace them.

The shortest serving current Justice is of course the newest:

Looking at all 116 Justices in Court history, the average serves for 16 years.

Two current Justices are just over that average:

Only one current Justice is exceptionally out-of-sync:

Thomas is starting his 32nd year.

Kennedy, who is just below Thomas on the all-time longest-serving list, retired during his 31st year.

Neither should have served that long. The Supreme Court should not be controlled by the whims of its incumbents, some serving twice as long as the average of all its other members.

The solution is remarkably simple.

It’s also already been introduced in Congress.

Note that last clause. It prevents another McConnell fiasco. Obama appointed Merrick Garland (currently Biden’s Attorney General) to replace Scalia in March 2016. McConnell prevented a vote, but under the new bill, Garland would have become a Justice four months later anyway.

The bill also satisfies the constitutional requirement that Justices are permitted to serve for life. The bill removes no Justices; it only determines when they will become Senior Justices.

The Constitution states that Justices “shall hold their Offices during good Behaviour,” meaning they can only be removed by impeachment.

Personally, I think the fact that one of our current Justices is married to a person who publicly denies the legitimately of the 2020 presidential election and, significantly worse, was communicating with the losing president’s chief-of-staff to strategize how to keep the losing president in office, that’s sufficient grounds for impeachment.

That Justice Thomas has also already served twice the average term exacerbates the problem. With 18-year term limits, the last hold-out from the early 1990s would no longer be determining law. Roberts and Alito would soon follow. Then moving forward, every president would appoint two Justices each term. If a president is reelected, they appoint two more–just as Reagan did. The make-up of the Court would then reflect voter will and not the unpredictable whims and political preferences of its individual incumbents.

The bill even has high bipartisan support. According to a June poll, 67% of Americans favor term limits for Supreme Court justices, including 57% of Republicans. The number was 70% in September. That super-majority support has been consistent for years: 77% in 2020 and 2019, and 78% in 2018.

We just need a Congress willing to listen to the overwhelming majority of the American public.

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