Recent decisions have made it clear that the Supreme Court is an out-of-touch, archaic institution that frequently stands in the way of the people’s will in an attempt to protect an outdated Constitution.
I propose the creation of a 6-year periodic review of all Justices upon which the Senate can either terminate or approve of the continued service of each Justice. To avoid constant turnover, however, the threshold for renewal must be a simple majority while the threshold for removal should be a supermajority. In the case of gridlock where there is no majority for renewal but no supermajority for removal, the decision would go to the Senate Judiciary Committee itself, and if they cannot reach a majority or supermajority it would go to the House of Representatives, and in the circumstance that they are also gridlocked, only then would the Justice get automatic renewal. This results of this reform will skew toward the renewal of Justices, as this is a power intended to be used only in extreme cases. Too much democratization of the bench would lead to a dramatic loss in impartiality. This is only meant as a last ditch effort to remove a Justice who is constantly at odds with the general populace and its interpretation of the Constitution.
This would allow for a significantly more democratically accountable process that still prevents the outright election of justices, and subsequent total politicization of the Court, forcing removal only when justices have made egregious errors.
The current demographic difference between the Supreme Court Justices and the rest of America is the root this problem. It results in a drastically different worldview between the members of the bench and the average American, creating a divide between what the two groups believe is important.
Theoretically, a more rapidly changing bench means more rapid adaptation to the general population, eliminating some discrepancies between the interpretation of the Court and the interpretation of the people. However, justices’ main function as interpreters of the Constitution will remain unchanged, so even if they are given leeway in interpretation they are still obliged to follow the actual spirit of the Constitution until it is amended, placing a limit on their power.
Current long periods of service mean that, while the rest of America is changing, the makeup of the bench is not. This problem is magnified by the rapid changes in modern society, which calls for radical and novel responses by the federal government that might not necessarily be constitutional in the outdated views of some justices, but are necessary to serve the people. This trend is ominous because we need our Constitution to be a living document, and therefore need a flexible Court.
In the recent National Federation of Independent Business v. Sebelius (2012) ruling, which determined that states could opt out of the expansion of Medicaid, resulting in 17 million unnecessarily uninsured Americans. These justices disregarded public benefit and nullified a democratically passed law. They did this even though the majority of Americans at the time of passage supported the expansion of Medicaid and believed that the healthcare system this law addresses has major problems.
Pragmatism, not ideology, was needed in the case of Shelby County v. Holder because of the potential of this opinion to restrict the fundamental right to vote, regardless of constitutionality. The actual result, however, was an idealistic opinion with a disregard for preserving the legitimacy of our democracy. The same kind of idealism permeated Citizens United v. Federal Election Commission (2012) in which Justice Stevens himself accused the majority of judicial activism against the will of the people by changing the case to fit the ruling that they wanted, effectively selling our democracy to the highest bidder.
These examples show how the Court does not adequately reflect the views of Americans as a whole, so America needs to ask itself if it wants the people’s constitution to be interpreted by extremists from both parties with little grasp on reality, or if it wants to let representatives from each state, representing both minorities and majorities, have at least some minimal input on how the constitution is read.
With this reform, the Supreme Court will still retain its original function as an interpreter and will not always acquiesce to popular opinion. This reform will only prevent extreme cases of shortsightedness or bias from affecting our democracy in an intolerable manner.
While this review process keeps the Court away from the fickle, short term will of the people as the founders intended, it still makes them significantly more accountable in the long term for their decisions. This prevents the people from radical and untested change but still allows their input to be heard in some way. This removal process is not intended to be frequently called upon, but rather is intended as a check to prevent blatantly political and biased decisions from seriously damaging our democracy.
Sawan Patel is a Viewpoint Writer.
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