This month’s Supreme Court arguments on Mississippi’s 15-week abortion ban, which did not go well for the pro-choice side, have rattled Democratic senators to the point that more are talking about reforming the court.
Congress should indeed consider whether to act — but carefully. A new report from a bipartisan presidential commission underscores that court reform could bolster judicial independence and the court’s legitimacy. Or it could do the opposite.
It is still unclear what the court will do with Roe, and no single ruling would justify changing the court. That would invite criticism that the legislative branch was further politicizing the judicial one, upending the court because lawmakers dislike the policy outcomes that have resulted from justices’ decisions.
The reasons to reform the court lie largely in political leaders’ machinations, which have discouraged moderation and promoted extremism on the bench. Led by Minority Leader Mitch McConnell (R-Ky.), Senate Republicans have obliterated the fair play and restraint that lawmakers used to exhibit when considering judicial nominees — first by rejecting Obama nominee Merrick Garland and then by ramming through Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, prompting an ideological shift on the court that could spell Roe’s demise.
For their part, presidents increasingly search for relatively young, ideologically zealous nominees rather than those with the most judicious temperament. This has led to an ideological chasm on the court and provided an incentive for ambitious lower-court judges to adjust their rulings to please partisan activists.
Some Democrats believe the solution is to pack the court with Democratic nominees, expanding its size, while they still have congressional majorities. This would be a historic mistake. It would sap the court’s legitimacy for no long-term benefit; Republicans could re-pack the court the next time they controlled Congress and the White House.
The commission report points out that, while expanding the court is highly controversial, there is much wider and bipartisan agreement on imposing term limits on Supreme Court justices. Terms could be long — perhaps 18 years — and expire in a staggered manner so that an equal number of vacancies come up in every presidential term. This would lower the stakes of the court confirmation process, diminish actuarial tables and luck as factors in which presidents get to decide the court’s composition, and guard against justices suffering from mental decline while still on the bench. Presidents would be freer to pick justices from more diverse backgrounds. More people would be able to serve on the court, so the preoccupations and quirks of a handful of lifetime appointees would no longer determine the law of the land.
The situation will only get worse without change. Term limits make sense.
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