Sunday, November 15, 2020

Supreme Court and Political Parties

Supreme Court justices are supposed to make objective legal rulings that are independent of political considerations. This is one of the reasons for giving lifetime appointments to the justices and preventing them from having to run for election.

That’s the way it’s supposed to be. But clearly it doesn’t work out that way. On most close decisions for many years, the justices voted along party lines. Although there were several exceptions in the 2018 term in which each justice voted across party lines, so it shows that this can happen, these cases are still a minority.

The most notorious case was Bush v. Gore in 2000, in which 5 Republican-appointed justices voted in favor of Bush, and 4 Democrat-appointed justices voted in favor of Gore. In the current panel of justices, three worked on that case in favor of Bush. 

Clearly, the Supreme Court is not removed from politics. Justices strongly tend to vote with the other members of their party.  This is confirmed by the extraordinary lengths that Republicans in the Senate took to appoint justices of their party. The Republicans refused to consider a moderate Democratic nominee in 2016, but then this year bent over backwards to quickly appoint a Republican, Amy Coney Barrett.

What is the solution to the problem? The justices are good lawyers and capable of reasoned arguments.  They are clearly capable of voting across party lines, but they usually don't.  The common party-line votes makes the Court look openly partisan and without objectivity. 

There are some solutions that could require at least one of the justices to agree across their party lines. One is to have an even number of justices with an equal number from each party. A party line vote will be a tie, and it doesn't result in a binding decision. If the justices feel that a ruling is important, they will have to convince someone from the other party to agree with them. If the decision is clearly partisan, and no one will break the tie, then there won’t be a ruling, and the Court won’t be involved.

Other solutions have been suggested. The approach of “court packing,” adding more members to the court, is a bad solution because it invites retaliation from the other party. Also, it is clearly a partisan solution, because it’s a competition to get more justices of the party in power.

Another solution is term limits for justices. It has been suggested that justices have terms of 18 years, so two justices would be replaced every 4-year presidential term. This would solve the issue of justices being nominated at younger and younger ages so they can serve longer. It will allow justices to be replaced periodically so they can stay current with public opinion, rather than staying long past their time. It will give a prospect for getting rid of bad, unproductive justices. But as long as the number of justices is nine, there will still be competition for the majority.

Another simpler solution that doesn’t require congressional action is for the president to refrain from nominating a justice when the next one retires, dropping the number to eight. At present, if the replacement is for a Republican, it would still leave a 5 to 3 Republican majority. It would take the loss of two Republicans to get a 4 to 4 balanced court. Also, this approach has the disadvantage that a new president could immediately fill the seat extra seat to go back to nine. An action of Congress would be needed to fix the number of seats at 8 or 10 (if it is constitutional). But at least it would restore the reputation of the Supreme Court as being impartial and nonpartisan.