Fixing the Supreme Court

I’ve figured out how to fix the Supreme Court – at least to the greatest degree possible without everyone else in the political system trying their best to destroy it.

It’s a combination of two ideas: one that is long overdue for every political position, whether elected or appointed; and one that is less savory to me, but is necessary in this case.

The first idea is that the Justices must have term limits.

I had heard the figure of 18 years batted about with regard to Justice term limits. It’s a natural term that, I believe, is extrapolated from the simple idea of appointing a new justice every two years. Barring death or retirement before any given Justice’s allotted time was up, this would work out to an 18-year term for each. If a Justice did die or retire out of term, it would just add a few extra years onto the terms of those behind him, but it wouldn’t greatly affect the fairness of the system.

It’s a simple and elegant solution with one fatal flaw.

That flaw is that any two-term president would appoint four new Justices in their time in office, replacing more than half the court. Given the increasing polarization of the parties and politicization of the courts, this would lead to regular potentially, even likely, seismic shifts in the court. That kind of inconsistency would be nothing but bad for the nation.

Since we obviously can’t trust politicians to fairly and sensibly do their part to create a balanced, neutral, and apolitical court, we have to have a better solution.

That solution is to implement the two-year appointment cycle, but to do so with an expanded, 11-member court.

That way, Justices will have a base-level 22-year term, extended slightly (for some) only by an unexpected death or retirement. And, no one president or party will be able to reshape the court so completely during the time of a two-term president. Four out of 11 Justices appointed over eight years is only a bit more than a third of the court, which is far less likely to radically overhaul any given court.

I believe it’s the best we can do to help mitigate the impact of politicization on the court. The terms are long enough that a consistency of vision and approach can be preserved, while relatively gradual changes can still be achieved. Great Justices will still have time to make their mark on the court and nation. But the terms are also short enough that there is an end point in sight for both the Justices and the nation when less-than-stellar members sit on the court.

Of course, any system can be gamed. And I’m sure more devious minds than mine will find ways to do it. Which is why fundamental changes need to made in other areas of the government, as well … but that’s another post for another day.

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