Maybe the Supreme Court Should Not Work This Way

Here we go again.

Just a day after Republicans beefed up their majority in the Senate, Supreme Court Justice Ruth Bader Ginsburg fell in her office and cracked three ribs. According to a statement by the Supreme Court’s public information office, she was admitted to the hospital.

Ginsburg is an 85-year old woman. That a lifetime appointment to one of the nine most powerful seats in the country’s judiciary rests on an 85-year old’s ability or desire to do her job in the twilight of her life is, in a word, insane. The reason for this insanity, as it so often is in the case of our bad government, is a few words in a document that was written when people still thought the cure for the common cold was bloodletting. Emphasis mine:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

What this means, essentially, is that you can sit on the federal bench until you die or decide to quit, so long as you don’t do any crimes worthy of impeachment. And even then, can you really rely on the Senate to do anything about it?

We are now seeing what the worst possible version of this looks like. President Donald Trump has been in office for less than two years. In that time, he’s already made two appointments (as former Presidents Barack Obama and Bill Clinton did in their first two years in office). One appointment came because the Republican-controlled Senate did Trump a solid and just stole it from Obama; another came because Anthony Kennedy just got tired. Trump used those appointments to select two men in their early 50s, one of whom has been accused of sexual assault by multiple women and yet got through the Senate anyway because Trump was lucky enough that a majority of senators simply didn’t give a shit.

Just as a reminder, Trump lost the popular vote, significantly, by millions of votes. Should Ginsburg leave the court in the next two years (whether by choice or, uh, some Other Thing), a man who was never elected by a majority of the country will get to reshape a third seat on the court—and with it, the country’s laws—for the next 20, 30, or even 40 years. And that’s all before Trump gets a chance at another four years in office.

Does this sound like any functioning democracy you’ve ever heard of?

There’s a very simple solution to this, which would have to overcome huge barriers to implementation: term limits. In the midst of the Kavanaugh hearings in September, The Economist offered one potential solution:

A more workable change would be to appoint justices for single 18-year terms—staggered, 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 from the court, this would be an improvement.

This is not a new idea—Chief Justice John Roberts wrote a memo in 1983 arguing for term limits—and there are already groups working to implement term limits. The main barrier to a reform like this is is that it would require a constitutional amendment amending that language, which itself would require either a constitutional convention called by Congress and two-thirds of states, or two-thirds majorities in both the House and Senate for passage and then ratification by three-fourths of the states. There is a reason that the Constitution has not been amended in decades.

That doesn’t mean, however, that it’s impossible. As a University of Virginia poll found earlier this year, over two-thirds of Democrats, Republicans, and independents support term limits. Three Republican presidential candidates in 2016 all backed term limits. A national campaign aimed at reforming the judiciary with a constitutional amendment would take years for passage, possibly even decades, but it would be well worth it in the long run.

The longstanding argument against this—that it would increase partisanship on a supposedly independent judiciary—has been exposed as clear bullshit by the events of the last couple of months. Brett Kavanaugh’s job before being named to the most important appellate court in the country (which paved the way for his Supreme Court nomination) was being a flack in the Bush White House. Give me a break.

For now, we just have to hope that Ruth Bader Ginsburg can last a few more years. But, god damn. There has to be a better way.