Reform the Court

Christ, we’ve got to be able to do better than this.— Justice Rhenquist quoted in Woodward and Armstrong, The Brethran, on President Nixon’s suggested candidates for two vacancies on the court in 1971.

Robert Reich offers three suggestions for reforming the Supreme Court:

  • A code of ethics
  • Term limits
  • Expand the Court

I believe these suggestions, if implemented, would prove ineffective.

The problem with The Supreme Court is that justices are appointed and confirmed for wrong reasons. Here is how it has worked:

  • The President selects a candidate presumed to have certain political leanings, or for other reasons unrelated to legal qualifications.
  • The president’s party in the Senate rallies in support of the candidate.
  • The Candidate promises independence and integrity.
  • Members of the Senate suspend disbelief.
  • The Candidate is confirmed.

Robert Reich’s suggestions don’t address this root problem.

A justice could be squeaky clean and still have a political bias or other faults. Justices receiving gifts and hiding them undermines public confidence in the Court, but prohibiting gifts wouldn’t make an unsatisfactory justice more responsible. Ethical and other virtues–honorable, respectable, responsible–aren’t equivalent.

Term limits might be effective in limiting the damage an unsatisfactory justice could do, but would be ineffective if an unsatisfactory one were followed by an unsatisfactory other. Term limits don’t address the root problem of the selection process and might lead to other problems, decisions might be influenced by the time remaining in a justice’s term, for example.

Robert Reich offers this as a means to put more liberal justices on the Court. Again, this fails to address the root problem. At best, this would be a short-term solution. It would set a terrible precedent, destabilizing constitutional government.

The constitutional way to reform the Supreme Court is clear–the people must elect better candidates for Federal elective offices.

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