Consider the following job offer: “Ability to create sweeping changes in our nation, job practically secure for the rest of your life, cannot be fired based on any unpopular decision you make or irrational reasoning you may use.” All you need is a nomination and the approval of 51 people and you’ve got the job.
This is the life of a Supreme Court justice – an office which, at its conception, was intended to be filled by the most objective and constitutionally competent among us. Of late, however, the Court has become a second legislature that threatens to tear at the fabric of this nation.
The Framers originally set out to create an impartial panel of judges appointed by the president and confirmed by the Senate for life terms, to be removed only by impeachment in cases of misconduct or dereliction of duty. One of the chief reasons for instituting life terms was to ensure that the Court was insulated from political pressures: If justices ran for each term like elected officials, they would be subject to the whims of the public.
Not until the landmark case Marbury v. Madison did the Supreme Court set the precedent of judicial review, by which the Court may strike down state and federal laws as unconstitutional. This vastly increased the institutional power of the body. Determining the constitutionality of legislation is a check on Congress and seems to be an important duty of the Court as it was conceived by the Framers; subsequent Supreme Courts, however, have allowed intense partisanship to color their findings, with such “legislation from the bench” precipitating an unintended and undemocratic use of judicial power.
After being nominated by the president, candidates for seats on the Supreme Court are eventually brought before a politically divided Senate for confirmation; the Senate’s decision is ostensibly based on whether or not the nominee will judge fairly on the bench if confirmed. While the hearings may seem gruesome, they have been reduced to mere grandstanding by the opposition party – for in the end, each nominee needs only a simple majority to be confirmed.
Once confirmed, the justices are sent on their merry way to begin their lifetime appointments. They have free rein to rule more or less as they wish.
The Court wouldn’t attract so much criticism if it were to actually decide each case objectively, but statistics have shown that the justices are anything but unbiased. In 2008, Court of Appeals Judge Richard Posner and University of Chicago Law School Professor William Landes published a study entitled “Rational Judicial Behavior: A Statistical Study,” in which they set out to determine the partisan relationship between each Supreme Court Justice and the party that nominated him or her. The study concluded that – no surprises here – those appointed by more conservative presidents tended to vote more conservatively and, conversely, more liberal presidents nominated more liberal justices.
Landes said later, “There’s some real predictive power here. You can determine a lot about how each justice is going to vote based on the political party of the president who appointed them and the composition of the Senate.”
Another issue that must be addressed is the sensibility of some Supreme Court decisions. While the Constitution – as well as Marbury – allows the Court to determine whether or not a piece of legislation is constitutional based on the letter or the spirit of the law in question, the Court finds itself in a precarious situation when it cannot conclusively come down on one side or the other. In those cases, the Court tends to rule on personal moral grounds, which often coincide with political affiliations. This is known widely as “judicial activism,” in that it creates a separate legislative authority that competes with Congress.
Three actions must be taken to ensure that the most unbiased people can execute (but not overextend) their authority on the bench. First: Amend the Constitution so as to increase the majority required for confirmation from a simple majority to two-thirds of the Senate. This would force the hearings to transcend politics and allow for more impartial judges to win confirmation.
Second: Require the justices to be reconfirmed by the Senate every 10 or 15 years. This would ensure that justices don’t simply take the job and then preside in a reckless, divisive or partisan manner.
Third: Congress should place a check on the Court whereby the justices would be legally compelled to refer to the legislature cases in which the Court does not perceive there to be any constitutional grounds on which to rule. In this way, the system could help eradicate “legislating from the bench” and allow the most unbiased people to serve objectively and competently on our nation’s highest court.
Tim Swenson is a junior in the College, a cadet in Army ROTC and a GUSA senator. He can be reached at swensonthehoya.com. Closing Arguments appears every other Tuesday.
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