The Supreme Court term that ended last month was a refreshing reproach to the perception that the justices are simply politicians in black robes.
True, there were several 5-4 decisions in which Republican appointees voted one way and Democratic appointees the other. But in some truly consequential cases — including a historic decision protecting gay and transgender workers against discrimination — liberal and conservative justices found common ground. Chief Justice John G. Roberts Jr., an appointee of President George W. Bush, joined Democratic appointees in several rulings, including a decision striking down an anti-abortion law in Louisiana.
Unfortunately, it will take more than signs of consensus on the court to remove it as a subject of partisan debate, especially in a presidential election year.
Shortly after the term ended, 87-year-old Ruth Bader Ginsburg, whom President Clinton appointed, announced that she was being treated for a recurrence of cancer. Democrats immediately raised justifiable concerns that Senate Minority Leader Mitch McConnell (R-Ky.) would try to ram through a Trump appointee if Ginsburg died or retired this year. This is the same McConnell who blocked the Senate from considering President Obama’s nomination of Merrick Garland in 2016 because it was an election year and the American people “should have a voice in the selection of their next Supreme Court justice.”
President Trump, meanwhile, has made it clear that he sees future appointments to the Supreme Court as a campaign issue. And Vice President Mike Pence recently said that Roberts had been a disappointment to conservatives.
For their part, Democrats have continued to complain about the mistreatment of Garland. During the contest for the Democratic presidential nomination, several candidates — though not former Vice President Joe Biden — expressed interest in expanding the number of seats on the Supreme Court. The proposed platform for the Democratic Party envisions unspecified “structural court reforms” to counter the Republicans’ success in filling (or prolonging) vacancies.
Court-packing is a terrible idea. And if a Democratic Congress expanded the Supreme Court to influence its rulings, what would prevent a future Republican Congress and president from following suit?
The Democrats’ exasperation with Trump and McConnell is understandable, but the solution isn’t tit-for-tat partisanship but rather a depoliticization of the process for appointing justices. Liberal and conservative legal experts have joined in proposing that justices — who now serve for life unless they choose to retire — be appointed instead to fixed terms. The most popular proposal would provide for an 18-year term.
Fixed terms would have several advantages. They would prevent justices from serving past their prime or clinging to their positions in an attempt to ensure that a president they trust will appoint their successors. Fixed terms also would expand the pool of potential nominees to include seasoned lawyers. The current system of life tenure on the court encourages presidents to maximize their influence by choosing younger nominees who potentially will serve for decades.
Most important, fixed terms would lower the stakes in any particular nomination to the court. That would especially be the case if, as some advocates of fixed terms suggest, appointments to the court occurred on a regular basis.
A proposal for 18-year terms favored by the reform group Fix the Court would allow a president to make two Supreme Court nominations during a four-year term. Most recent presidents have appointed at least two justices, but the frequency of appointments has varied. For example, Richard Nixon appointed four justices in his first term; Jimmy Carter didn't get the chance to appoint any.
There’s no denying that presidents choose justices they believe will share their legal philosophy, even if their appointees often wind up disappointing them. Staggered appointments would prevent any given president from exercising disproportionate influence on the court by taking advantage of a windfall of vacancies.
Because justices currently on the court would probably need to be allowed to serve out their life terms, a system of regular appointments might result in a temporary enlargement of the court until all nine members had been nominated to fixed terms. That sort of transitional expansion, however, raises none of the issues that packing the court to influence its rulings would raise.
Congress arguably has the power to force the shift to fixed terms. The Constitution says that federal judges “shall hold their offices during good behavior,” a provision generally interpreted as conferring life tenure. But Congress wouldn't necessarily violate that provision if it passed a statute barring justices from spending more than 18 years of their life tenure on the Supreme Court, reassigning them after that to lower courts — where retired Supreme Court justices have already heard cases on occasion.
The argument on the other side is that, because the Supreme Court was created by the Constitution, Congress may not force justices to step down. Roberts made a similar argument in 2011 when he noted that justices couldn’t be formally bound by the ethics code for federal judges because the code applies only to lower courts created by Congress.
Even if a statute providing for fixed terms would pass constitutional muster, however, it would be better if the change were accomplished through an amendment to the Constitution. That is admittedly a more arduous process, but an amendment would mean that successive Congresses couldn’t repeal or reinstate fixed terms to gain partisan advantage.
There are other ways to depoliticize the selection of Supreme Court justices. For example, the filibuster on justices' nominations — which the Republican-controlled Senate did away with to assure Neil Gorsuch’s confirmation — could be restored. As undemocratic as the filibuster is, it would at least encourage the nomination of jurists who can command some bipartisan support.
But fixed terms, combined with regular appointments to the court, would be the surest way to restore both the image and the reality of a nonpartisan court, while protecting judicial independence. Eighteen is enough.