This coming Monday, the Supreme Court will almost certainly hand down a ruling on Obamacare. No matter what the decision, it will inevitably intensify the debate over the legitimacy of this institution. The Court makes many of the most important policy decisions in our country, yet it is the most undemocratic branch of government. In a democracy, policymakers are supposed to be accountable to the public, but with the Court we have nine people who no one elects and who serve for life.
The fact that we have absolutely no control over these crucial policymakers is undoubtedly one reason why a recent poll showed that fewer than half of Americans have confidence in the job they are doing. And 60 percent think appointing justices for life is a bad idea.
There is growing interest in making this political institution more responsive and accountable to the public. But how could we do that? Basically, there are two reforms that could make the Court more democratic.
The first idea is to elect Supreme Court justices just as we do other important national policymakers. This would make them directly accountable to the public, like the president and members of Congress. This is not as radical as it sounds: we already elect some judges in 39 of our states and together they preside over the majority of cases in the U.S. We would just be extending this idea to the federal level.
Of course, some people fear that this would politicize the judiciary and turn the justices into "legislators with robes." But others believe that is exactly what they have become and that is why we need to give the public the power to rein them in. About 75 percent of Americans already think that the personal and political views of the Supreme Court justices play a role in their decisions.
A more serious objection to this scheme involves the terrible state of elections in this country. Specifically, money given by wealthy individuals and special interests plays on increasing alarming role in determining who gets elected to Congress and the presidency. Do we want to see the Koch brothers throw their financial might behind electing Supreme Court justices? Hardly. The answer, of course, would be to have publicly financed elections of all judges and justices, as the Brennan Center for Justice has advocated for years.
Another idea that is gaining attention is imposing terms limits on justices. One version would limit their time in office to 18 years. Their appointments would be staggered so that a new justice would be appointed every two years. Eighteen years might sound like a long time, but it is considerably less than the average tenure, which since 1970 has been 26 years!
Right now, vacancies take place too infrequently for appointments to serve as democratic check on the Court. The faster turnovers in the term limits plan would keep justices more in touch with current public sentiments. It would also prevent the politically unfair situation of some presidents appointing two or three justices and others appointing none. Every president would get to appoint two justices.
Adding to the legitimacy of this plan is the fact that most Western democracies with post-World War II constitutions have instituted term limits for their Supreme Courts, with most in the six- to 14-year range. And among other democracies that do not have term limits, virtually all of them have stipulated a mandatory retirement age ranging from 65 to 70. So we are essentially alone in maintaining lifetime tenure for justices. Significantly, 47 of the 50 states also mandate limited terms of office for the judges on their highest courts.
The term limits idea has garnered some important support from legal scholars. And there is some bipartisan interest as well, with former Republican presidential candidate Rick Perry endorsing a version of this reform.
Both of these reform ideas would most likely require a constitutional amendment, which are notoriously difficult to pass. But there is growing support for a change. More and more Americans are beginning to realize that we can no longer afford to have a disturbingly aloof and unresponsive institution at the heart of our democracy.
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