The United States Supreme Court is a fundamentally broken institution. As one of the three branches in our federal government’s checks and balances system, it makes perfect sense that our nation would need a judiciary to round out the structure, but describing the out-of-control monster that the Supreme Court has become as merely that is incredibly ignorant. Starting with Marbury v. Madison, when the Marshall court gained the power of judicial review, this supposedly equal branch has transformed into a body that not only does its job, but also has become the nation’s premiere legislative authority due to the inaction of the branch that’s supposed to make laws. In the past 100 years for example, landmark supreme court cases, not congress-passed laws, have delivered much of the country’s civil rights progress. This means incredibly important rights relating to reproductive health, marriage equality and much more are held up only on judicial precedent, with no law on the books guaranteeing them.
The fate of those civil rights granted to Americans are now in serious jeopardy as Donald Trump’s three appointees have tilted the court to a 6-3 conservative majority. His last appointee, Amy Coney Barrett, was sworn in last week amidst a national outcry charging the Republicans with hypocrisy, spinelessness and an overall lack of morals. That’s all incredibly valid criticism, but that’s not what this article is about. Let’s talk about the future. We cannot have a system where the dominant party of the era simply secures a court majority and then runs with it. Life terms in a world where people can live lives far longer than the founding fathers could have dreamed of make no sense, and the argument that it allows the justices to be nonpartisan can be easily debunked when one looks into Barrett’s history. Alongside life terms, the fact that we have a branch of government not elected by the people in a country that constantly loves to call itself a democracy is lunacy. So if we dealt with these two issues and made justices elected by the people and limited their terms, maybe we would actually be able to fix this mess. To some people this might seem like drastic, unprecedented change, but allow me to introduce you to the answer: the U.S. State Supreme Courts. Each state has its own highest court, so let’s take a look at how they’re structured.
The first issue to look at is term limits. According to ballotpedia.org, only 3 of the 50 states grant life terms to their justices, and it’s slightly limited even in these cases. Only Rhode Island is the ultimate outlier, with a system identical to the federal one, but the other two, Massachusetts and New Hampshire, have clauses requiring justices to step down at age 70 (Let me remind you that three SCOTUS Justices would be pushed out by this, with two more hitting 70 in the next five years). Those are the weird outliers of the 50 though, and when you factor them out, the other 47 average term limits of 8.5 years. That’s almost exactly the term limit of a governor. Huh, it’s crazy when things actually make logical sense.
Now, that solves the problem of justices lasting forever, but we also need reforms that make the court more representative of the people. For that, enter the 21 states that hold elections for their justices. Sure, it’s not a majority, but just a short while ago primary elections were simply a formality. It’s the precedent that matters, and the fact that the system exists proves it can work. We need to stop pretending that justices are robotic decision-creation machines with zero bias. Instead of ignoring it, people should be able to judge their judicial candidates just as they judge the rest of the candidates. They are human, after all.
So there it is, two completely precedent-supported methods to reform the U.S. Supreme Court. I would be remiss not to mention that there is a very viable other option in adding justices to the court. While there is sound logic to back this, it’s become a very polarizing issue due to people not being willing to actually come to the table. These other two options are much less arguable, as there is concrete proof that they can work, and I should also mention that there isn’t a single state in the union with more than nine justices.
No matter what the solution may be, the bottom line is that we need court reform, and the tools to create change already exist. Now all we have to do is use them.