As ugly and partisan as Supreme Court selections have become, dating back to at least the Robert Bork nomination in 1987, the real problem with the Supreme Court is that it is poorly designed and has been not subjected to careful scrutiny as has the other two branches.

The Supreme Court is too powerful, too political and too parochial. Our constitutional founders’ genius was their notion of checks and balances of the system as a whole, not the detailed design of each branch. They avoided deciding about political parties, punted the slavery issue and came up with the Electoral College out of thin air — all out of practical necessity to form a “more perfect union” to provide “our common defense” against foreign and domestic American threats.

The present judicial selection process has been dominated by rather narrow political interests promoting rather narrow judicial perspectives instead of broad-minded jurists seeking to further the goals stated in the preamble. Supreme Court decisions about the constitutionality of Congressional legislation are actually a sliver of the Court’s workload, although other decisions settling disputes between states or about criminal procedure certainly affect public policy.

Using the “originalism” perspective of Supreme Court nominee Amy Coney Barrett and her mentor, the late Justice Antonin Scalia, which aspires to interpret the Constitution as it was written, all citizens should review the text of the Constitution pertaining to the Supreme Court and the judiciary.

There is not much there. Article 3 simply states: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” There is no mention of number of justices nor does it grant the Supreme Court the authority to rule on duly passed legislation unconstitutional.

As all political science majors should know, “judicial review” was announced, i.e. invented, by Chief Justice John Marshall in Marbury v. Madison in 1803. His best argument for it is that “well, somebody has to be the final decider so it might as well be the Supreme Court.” Some people call that judicial imperialism. Marshall just announced it and we all have gone along with it for two centuries.

It seems unlikely that the drafters of the Constitution originally intended nine unelected judges to dominate American public policy by 5-4 decisions. Article 1, establishing Congress, is the first article for a reason. “We, the people,” established the national government so that the people could govern ourselves.” Article 1, establishing the legislative branch, clearly has more thought and detail than does Article 3. It’s almost like James Madison said “heck, they will figure it out.”

My concerns about judicial supremacy are unrelated to a potential justice Barrett, for I have had many of these ideas since my first political science class in 1970. Back in those years, the Supreme Court was viewed as the protector of criminal rights, e.g. the Miranda rights we all know from TV, and that most classmates and the professor spoke so highly of. I was skeptical, even back then.

Since then, the Supreme Court has decided to overturn Congressional legislation about campaign contribution restrictions, that gun rights apply to individuals, and limited voting supervision of states with a history of racial suppression. Now we are waiting for the new justice to decide if people with pre-existing conditions and citizens under 26 will have health care after confirmation hearings where she artfully pretended she has no opinion on the matter.

A frequent suggestion for court reform is to limit the length of service of justices by adopting a retirement age or term limits of a decade or more. While I don’t oppose these suggestions, they don’t get at the fundamental problem of excessive Supreme Court power and the hyper-politicization of judicial selection. Faster turnover of justices would reduce the long-lasting influence of individual justices.

Judicial selection will always be “political” but can be made more cordial and thoughtful by adopting, via a Constitutional amendment, a judicial selection commission similar to the Missouri Nonpartisan Court Plan that is used in half the states. A judicial nomination commission, that includes some appellate court judges, would nominate a slate of names to the president who then makes a nomination to the Senate. Alternatively, we could expand the selection process to include the House of Representatives or to require two-thirds vote in the Senate for confirmation.

My preference is to limit the Supreme Court’s power by requiring a super-majority — at least six out of nine justices — or by congressional restriction on court jurisdiction, including in legislation that statement that “this Act is not subject to judicial review.”

Alternatively, a reform that is based in the American concept of “checks and balances” is to adopt a “Congressional Review” of non-unanimous Court rulings based on congressional legislation. As a practical matter, such Congressional Review could be required within a specified time period or for decisions with less than two-third of the justices.

While amending state constitutions is quite common, there are two proposed amendments this upcoming election, amending the U.S. Constitution is not part of our political culture. Our constitutional founders did a heck of good job for their time. Unfortunately, part of the American political tradition is that it is a perfect document that seldom, almost never, needs amended. Rather than have incremental adjustment we have a Constitution that is too old and rigid to amend because the stakes are so high. We have had a failure of imagination and analysis when it comes to the Supreme Court.

Without the capacity to amend the Constitution to make it “more perfect” we resort to more expedient political solutions such as “court packing” that are less than ideal.


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