The Supreme Court

America’s highest court

needs term limits
Deepening partisanship is bad for the court and bad for
America

Sep 15th 2018

THE judiciary, wrote Alexander Hamilton in Federalist Paper 78, “may

truly be said to have neither FORCE nor WILL, but merely
judgment...[It] is beyond comparison the weakest of the three
departments of power.” For much of American history, politicians saw
the Supreme Court as a backwater 1. John Rutledge, one of the first
justices appointed by George Washington, resigned to become chief
justice of South Carolina. Not until 1935 did the court have a building
of its own. Today it occupies a central and increasingly untenable 2
position in American life (see Briefing).

The centrality stems 3 largely from gridlock 4. As Congress has grown

incapable of passing laws involving even straightforward 5 political
trade-offs, power has flowed to the executive and judicial branches.
Political questions best settled 6 by the ballot box 7—about abortion,
for instance, or gay marriage—have become legal ones settled by nine
unelected judges.

The untenability stems from the court’s growing partisanship. It was

not always thus 8. Republican presidents appointed three of the 20th

This article has been selected and edited by Orlando Eduardo. 1

Contact: orlandoblack@gmail.com
The Supreme Court

century’s greatest liberal jurists—Earl Warren, William Brennan and

Harry Blackmun—as well as Anthony Kennedy, the recently retired
“swing vote”. But today the court’s four conservative justices were all
appointed by Republican presidents, the four liberals by Democratic
ones. The nomination process has grown ever more poisonous.

Like a bar fight, it is hard to be sure who started it, but each punch
leads to retaliation. Republicans point to Democratic tactics during the
hearing for Robert Bork, a Reagan nominee. Democrats are the
victims of the most recent blow 9—which was also the most
shameless. In 2016 Republicans refused even to hold a hearing for
Merrick Garland, whom Barack Obama had nominated, denying the
president a power that is granted 10 to him under the constitution,
and allowing Donald Trump to fill the seat instead.

Mr Trump’s second Supreme Court justice, Brett Kavanaugh, will be

confirmed only because Republicans hold a two-seat majority in the
Senate. Should they lose that majority in the Senate this autumn, and
should another Supreme Court seat before long open up, Democrats
will probably prevent Mr Trump from filling it. The norms that
Republicans created for Mr Garland will be used to justify their
behaviour. And on it will go.

This partisan ratchet 11 is bad for the judiciary and bad for the
country. It risks hobbling 12 the court, in two ways. First, if the only
time a president can fill a seat is when his party controls the Senate,
then the court will spend long periods at less than full strength.
Second, the court’s legitimacy depends on its reputation as a credible
neutral arbiter.

The judgments of a court seen as just another nakedly 13 political

body, no different from Congress or the presidency, can easily be
dismissed—or fought. Franklin Roosevelt mulled 14 packing the court
in the 1930s when it frustrated his New Deal ambitions. It is not hard
to imagine a Democratic president and Congress doing the same in
four years’ time, if five Republican-appointed justices repeatedly
strike down 15 the ambitious social programmes these politicians
promised.

Breaking this cycle requires reform. Some have proposed radical

solutions, such as making all of the (16)roughly 180 federal appellate
judges associate justices, and having nine of them drawn 17 at
random to hear and choose cases at the Supreme Court for a limited
period—a term, at most. Defenders argue that this would make the
court more deferential to precedent, and any one judge less able to
spend years cutting a partisan path across the nation’s highest court.
But it could also just push the political brawling 18 down a level, so

This article has been selected and edited by Orlando Eduardo. 2

Contact: orlandoblack@gmail.com
The Supreme Court

that every appellate nomination becomes a bloodsport. In any case, it

is probably too drastic a change to be feasible 19.

A more workable change would be to appoint justices for single 18-

year terms—staggered 20, so that each president gets two
appointments per term—rather than for life. Each presidential term
would thus leave an equal mark on the court, and no single justice
would remain on the bench for 30 or 40 years. New blood would make
the court more vital and dynamic. A poll taken in July showed
widespread bipartisan support for term limits. So long as former
justices were prevented from standing for office, becoming lobbyists
or lawyers after stepping down 21 from the court, this would be an
improvement.

Some fear that term limits would simply entrench 22 the court’s
political centrality by making it an issue in every election. But that
bridge has already been crossed. “You have to vote for me,” Mr
Trump told a rally 23 in 2016. “You know why? Supreme Court judges.
Have no choice.”

What better way for Americans to start finding a path back towards
civil politics than reminding themselves that bipartisan institutional
reform remains possible?

This article has been selected and edited by Orlando Eduardo. 3

Contact: orlandoblack@gmail.com
The Supreme Court

VOCABULARY
(n) a place or state in which no development or progress
1 backwater is taking place.
2 untenable (adj.) undefendable
(v) arise, come from, originate:
3 *stems he centrality stems largely from gridlock
4 gridlock (n) a situation of very severe traffic congestion

5 *straightforward (adj.) frank, candid; sincere; honest

/ˌstreɪtˈfɔr wərd/
6 settled (v) arrange; resolve,

(n) voting box, box into which ballot

7 ballot box tickets are placed

8 *thus (adv.) therefore, so: This detergent is highly

/ˈðəs/ concentrated and thus you will need to dilute it.
9 blow (n) a sudden shock or disappointment.
10 granted (v) give (a right, property, etc.) formally or legally to.
(n) a situation or process that is perceived to be
deteriorating or changing steadily in a series of
11 ratchet irreversible steps:
a one-way ratchet of expanding entitlements
12 hobbling (v) create difficulty for
(adv.) nudely, in a bare manner; openly, in an exposed
13 nakedly manner, simply

14 mull (v) think over, ponder, contemplate

/mʌl/
(phrasal verb) strike; struck; struck - annul, nullify;
15 *strike down especially to declare (a law) illegal and unenforceable
the Supreme Court struck down the law

16 roughly (adv.) approximately, around, circa, in the region of

/ˈrʌfli/

17 drawn (v) draw; drew; drawn – pick or be given randomly

/drɔːn/

18 brawl (n) fight; quarrel

/kroʊ/
19 feasible (adj.) able to be carried out, achievable; possible, likely
(adj.) shocked, stunned; arranged so that objects or
20 staggered parts are not in line,
(phrasal verb) withdraw or resign from a position or
21 stepping down office; resign
(v) establish so firmly that change is difficult:
22 entrench ageism (prejudice or discrimination on the grounds of a
/ɪnˈtrentʃ/
person's age) is entrenched in our society.
(n) a mass meeting held as a protest or in support of a
23 *rally cause

This article has been selected and edited by Orlando Eduardo. 4

Contact: orlandoblack@gmail.com