07/05/2012 01:22 pm ET | Updated Sep 04, 2012

The Supreme Court Needs Fixing

Imagine, for a moment, that last Thursday went a bit differently. Imagine that the Supreme Court issued its opinion, striking down the entire Affordable Care Act by a 5-4 vote. One, unelected man, Anthony Kennedy, would have been credited with overturning a law that will one day allow millions of Americans to receive health insurance -- a law that was passed by both houses of the legislature and signed by the president.

President Obama would have surely launched a campaign that viciously condemned the Court's undeniable activism. The ruling would be mentioned along with Bush v. Gore and Citizens United, two cases that pushed the Court to unchartered waters, where centuries of precedent were overturned. Suddenly, Thomas Jefferson's warning that judicial review opens the door for an "oligarchy" would seem more plausible than ever before.

It's a scary thought, and one that was close within reach: A widely-quoted CBS News report, citing unnamed sources, maintains that Chief Justice John Roberts was originally planning to strike down the law. Regardless, the law stands, and the country is much better off. But that this hypothetical scenario was so close to becoming reality is a serious cause for concern.

Judicial review, of course, is the practice that has made the Supreme Court so supreme in nature. In the landmark case Marbury v. Madison, Chief Justice John Marshall granted the court the ability to overturn acts passed by the democratically elected legislature. It opened up the possibility for the Court -- a panel of nine, unelected, life-tenured judges -- to effectively hijack the democratic process, allowing them to pursue their own ideological agenda without any accountability.

Fortunately, Marshall recognized the danger of traveling down that road, and exercised what is now commonly referred to as "judicial restraint" -- a recognition that the judiciary should only interfere with the legislative process in extreme cases. Sure enough, Marshall overturned only one law during his entire tenure of over 30 years, preserving the Court's position as the least powerful branch of government, as the founders intended.

But over the next few decades, the Court began striking down laws at unprecedented rates, with the Court currently on-track to strike down more laws in a 50-year period than the country has ever seen. The Court went from the least significant branch to the most significant, reserving an unquestioned right to overturn any law, regardless of popular support or precedent.

The newfound power of the Court is not the only structural issue it faces. As it has always been, the president reserves the power to nominate justices when a sitting justice resigns or passes away. The randomness of such events, however, leads the Court in ideological directions completely out of touch with the rest of the country. For example, in Abraham Lincoln's four years in office, he appointed five justices. Jimmy Carter, who also served for four years, never had the chance to appoint a member to the Court.

The randomness of the selection process has become increasingly dangerous given the incredible power-grab the Court has benefitted from in the past century. In essence, our system allows nine, unelected individuals -- who are chosen with no regard to the electoral process -- to serve their entire life, with the power to strike down laws passed by elected members of Congress, and signed by the president.

At the same time, however, almost everyone agrees on the importance of an independent judiciary -- an essential check that has also done a lot of good for the country. But as the Court has become more powerful, we have seen the emergence of our "quad-cameral" system: In order to pass a law, not only do both houses of Congress and the president need to sign off on it, but now the Supreme Court has to weigh in as well. Scaling down the power of the Court does not mean disrupting the checks and balances already in place -- it just means making government easier to manage.

Preserving those essential powers of the Court while also streamlining government is, in fact, possible. To limit, but not eliminate, power, we can require a supermajority, at least six votes, to overturn a law. To give the people at least some input in who serves on the Court, we can give each president the power to appoint at least one justice, and set a cap to ensure no president has disproportionate influence.

Most importantly, we need a discussion. We need people to begin questioning why the Court was created to begin with, and if this drastic increase in power is appropriate. Instead of just accepting the current role of the Court, we should be reminding ourselves that even John Marshall, who began this trend over two centuries ago, never intended for the the Court to make headline news.