The Founding Fathers of the United States of America intended for a lot of things to come out of their revolution: for example, a country and a Constitution. They also intended for a lot of things not to happen, like the formation of political parties, women gaining the right to vote or the politicization of the Supreme Court. And yet, here we are. In the early years of the Supreme Court in the late 18th and early 19th centuries, there were very few non-unanimous decisions; the second Chief Justice of the Court, John Marshall, believed that the decisions his judges handed down should be correct, impartial and unanimous to show American citizens that the decided law was clearly agreed upon by the highest court in the land. Nowadays, 5-4 decisions are so prevalent that there are whole articles dedicated to analyzing what they imply about the political ideology of the Supreme Court — a far cry from the apolitical and “least dangerous” branch of government that “spoke with one voice,” as described by Hamilton and Marshall in the late 18th century. Now, in the unholy present, with the news of Justice Ruth Bader Ginsburg’s death, there have been talks of packing the court, a refusal to vote on Trump’s nominee before November and even a potential government shutdown (thankfully, this was avoided due to new stimulus package discussions), all in order to respect RBG’s dying wish that she would “not be replaced until a new president is installed.” Democrats are loudly objecting to Trump’s attempt to push through his nominee in less than 40 days, especially after the Republican Senate blocked Obama’s appointee in 2016 with over 10 months left before election day. Mitch McConnell believed, then, that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” And that’s exactly what happened: the GOP Senate refused to even vote on Obama’s nominee, Merrick Garland, and one of the first acts of newly-inaugurated President Trump in January 2017 was to nominate Neil Gorsuch. Now, though, McConnell has abandoned this line of thinking and is insistent on pushing through Trump’s nominee. The precedent that McConnell set in 2016 was based on a single idea that he is now, hypocritically, embracing in 2020: one president’s Supreme Court appointees can shape the lives of Americans for generations. So, what does that mean when the nominating president in question is appointing a full third of the court, not to mention the added fact that he wasn’t even chosen by the majority of the American public? How does this represent the voice of the American people?
So, now what? That’s all we can think and say and do. I can’t listen to NPR in the morning without hearing about the SCOTUS fights, and it’s getting depressing. With RBG’s death, there have been renewed calls to implement an eighteen-year term limit on the courts. How would this help? According to an organization called Fix the Court, the Founding Fathers actually did debate term limits before settling on a life tenure, with the goal of “shield[ing] those serving on the court from the political pressures of the day.” But, as we’ve seen in the past week, those pesky political parties that Washington himself was so against have come to poison even the ideally-apolitical highest court in the land. In a recent article titled Term Limits Won’t Fix The Court, Ilya Shapiro argues that a term limit would enable justices to retire in peace — something that Ginsburg arguably should have done while we still had anyone other than Trump in office — instead of either retiring for political reasons because they want a certain president of a certain party to appoint their successor, or dying on the bench and throwing the whole country into a political turmoil. Essentially, Shapiro argues, term limits won’t fix the court, “but they could help restore confidence in the confirmation process and eliminate public concerns about aging justices.”
The modern idea of an eighteen-year term limit comes from a paper published in 2006 by Steven Calabresi and James Lindgren. The authors suggested “a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices.” This way, Calabresi and Lindgren argued, the number of justices on the Court would be constitutionally fixed at nine to avoid court-packing from either party, and every two years, a vacancy would occur. A one-term president would get to appoint two justices in their tenure, and a two-term president would get to appoint four. Politicians such as Andrew Yang, Beto O’Rourke and even sitting Supreme Court Justice Stephen Breyer have expressed support for such a measure. It would be a bit tricky to implement, but, once it got going, many supporters hope it would slowly restore the faith of the American people in the legitimacy and authority of the Supreme Court’s ability to make decisions based on questions of law rather than politics. Ideally, justices would not have to work until their deaths, presidents would not have to consider the remaining lifespan of a potential nominee when making a shortlist and the Court could be staffed by a rotating but routine assortment of people chosen, at least indirectly, by the American People.
Ruth Bader Ginsburg wasn’t perfect. I personally agreed with a lot of what she did and what she stood for and disagreed with quite a bit else. But she was a human being, loved by her family and friends who, for worse or for worse, had the weight of an entire democracy on her shoulders. And now, even in death, her loved ones cannot mourn properly without the image of American constitutionalism crashing to its knees on fire all around us. One of the greatest women’s rights activists in American history is now being used as ammunition in a pitiful shootout between two old men. History has shown us that the Supreme Court, once the apolitical, single-voiced, least polarizing part of the federal government, has become an ideological battlefield. And, it must be said: if the health of American democracy and the existence of human rights all depended on one eighty-seven-year-old woman outlasting one presidency, then perhaps the system is not simply beginning to crumble in front of our eyes. Perhaps it broke a long time ago. Or perhaps, it was just designed this way.