The partisan deadlock after Supreme Court Justice Antonin Scalia’s untimely death, as well as liberal entreaties to Justice Ruth Bader Ginsburg to retire so that President Obama can fill her seat, are illustrations of the wild card that the Supreme Court has become in American politics.
The impact of Supreme Court decisions has become greater as court and culture have become more polarized. Moreover, presidential opportunities to appoint have become fewer as justices serve longer, so today every court appointment is a major political event.
The 2012 presidential election was the first time in a long time that we did not frequently hear that the future of the Supreme Court hinged on the result. Usually, commentators predict that some number of justices is bound to retire or expire in the coming presidential term.
Since 1969, scarcely any justice has served less than two decades. Excluding the four most recent appointees, the average is more than 23 years, higher than any comparable period in the past (16 from 1937 to 1969, less than 14 from 1900 to 1937).
Put another way, recent presidents have had fewer opportunities to choose justices. President Obama looks like he will serve two terms with only two appointments, as did Presidents George W. Bush and Bill Clinton. That has not occurred since Presidents James Madison and James Monroe, when the court had only seven seats. President Reagan served two terms with only three appointments, something not seen since Woodrow Wilson and, before him, since Thomas Jefferson.
Jimmy Carter had the rare distinction of being the only president never to make a Supreme Court appointment (apart from two presidents who died in office and whose successors made the appointments).
Nobody would deny that the Supreme Court selection process (if not the court itself) has become highly politicized. So the least we can do is provide some regularity to the process. A modest amendment would provide:
1. The Supreme Court shall consist of one chief justice and eight associate justices. The justices shall serve for a term of 18 years, the term of one justice expiring on the final day of every even-numbered year.
2. The justices serving when this amendment is ratified shall determine by lot the order in which their terms shall expire.
3. When the president appoints a justice he shall also appoint an alternate, who shall serve the remainder of the term of the simultaneously appointed justice who shall retire, die or be removed before the expiration of his or her term.
This amendment would institutionalize what has been the historical average — two Supreme Court appointments per presidential term — but would remove the aberrations. We have had 112 justices over 228 years. But we have gone as long as a dozen years with no turnover, and have had as many as five appointments in one presidential term. Justices have served as long as 36 years and as little as five months. The median and the mean are a little more than 16 years, about what the amendment would provide.
Presidents would be guaranteed two appointments per term, and Section 3 would ensure that vacancies in uncompleted terms did not become the occasion for random turnover. An alternate, presumably as close as possible in “judicial philosophy” as the incumbent, would complete the term.
Of course, it’s possible that the alternate may predecease the incumbent, but no system is foolproof.
The justices themselves would no longer be tempted to take into consideration how their exits would affect the court. We know that some members of the court have delayed their retirements — often well beyond the point of efficiency — to maintain their influence. Justices John Marshall Harlan and Melville Fuller were said to have made a pact not to resign “until they have to take us out feet foremost.”
President Taft complained that “[T]he condition of the Supreme Court is pitiable, and yet those old fools hold on with such a tenacity that it is most discouraging.” But when Taft became chief justice and his own health declined he said, “I must stay on the court in order to prevent the Bolsheviki from getting control.” Earl Warren tried to time his retirement so that Lyndon Johnson could choose his successor.
Section 1 would also fix the size of the Supreme Court. Though Congress hasn’t done this in a long time, it is possible to alter the composition of the court by altering its size. The lame-duck Federalists tried to prevent Thomas Jefferson (who lamented that justices “seldom retire and never die”) from making an appointment by reducing the size of the court from six to five.
The Republicans prevented Andrew Johnson from making any appointments when he served out Abraham Lincoln’s term. Franklin D. Roosevelt’s infamous gambit to “pack” the court by expanding it to 15 justices in 1937 was the last serious proposal. The court as an ennead is practically set in stone, and this amendment would formalize it.
One element of chance is needed to put the proposal in motion, for lot is the only fair way to decide which of the current justices will be the first to go.
Paul D. Moreno is a professor of constitutional history at Hillsdale College and is the director of academic programs at the College’s Kirby Center in Washington. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
