by Erwin Chemerinsky
The just-completed Supreme Court term was filled with deeply disturbing decisions. In Plumhoff v. Rickard, the Court held that police can shoot at a car in a high speed chase to get it to stop — and continue to shoot until it stops — even when the basis for initially stopping the car was no more than a burnt out headlight. In McCutcheon v. Federal Election Commission, the Court struck down limits on the total amount that a person can contribute to candidates for federal office or political parties over a two-year period. In McCullen v. Coakley, the Court declared a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities unconstitutional, thus leaving women seeking care without adequate protection against harassment and putting in jeopardy laws creating buffer zones around military funerals, cemeteries, and places of worship. In Town of Greece v. Galloway, the Court ruled that it is constitutional for a town board to have Christian clergy recite explicitly Christian prayers before its meetings. And in Burwell v. Hobby Lobby, the Court held for the first time that for-profit companies have a right to the free exercise of religion and may use it to deny women insurance coverage for contraceptives.
But this term was not an aberration. In a forthcoming book, The Case Against the Supreme Court (to be published by Viking on September 25), I argue that throughout American history, the Supreme Court has largely failed at its most important tasks of enforcing the Constitution and protecting the rights of minorities. The Supreme Court’s decisions about race – aggressively enforcing the rights of slaveholders, approving “separate but equal” and Jim Crow laws for 58 years, most recently striking down a key provision of the Voting Rights Act of 1965 – have made society worse. Throughout American history, the Court has failed to enforce the Constitution in times of crisis, allowing violations of basic rights without making the country any safer. And the Court, especially today, has consistently sided with the interests of business at the expense of workers, unions, and consumers.
In the last chapter of the book, I ask how the Court might be reformed to make it more likely to succeed at its most important tasks in the future. I know of no single reform that could have prevented all of the failures that I detail in the book. The Court is a human institution and like any other human institution it will have successes and failures. But I can identify at least five reforms, some large and some small, that would change the Court significantly for the better.
1. Clarify the role of the Supreme Court
I believe that many of the Court’s failures stem from the lack of a clear articulation and recognition of the proper role of the Court. The justices, individually and collectively, should articulate and embrace that the most important role of the Supreme Court is to enforce the Constitution against the will of the majority. The Court should recognize that the two preeminent purposes of the Court are to protect the rights of minorities that cannot rely on the political process and to uphold the Constitution in the face of repressive desires of political majorities.
2. Establish merit-based selection of justices (and federal judges)
There is nothing in the United States Constitution that prevents the President from creating a panel for merit-based selection of individuals to fill judicial vacancies on the Supreme Court and the federal courts and then promising to pick an individual from among the names forwarded to him. President Jimmy Carter did exactly this for federal court of appeals vacancies – he never got to select a justice for the Supreme Court – and the results were stunning.
Each panel should be ideologically diverse, including Democrats and Republicans, lawyers and non-lawyers. The role of the panel should be to present the President the names of at least two of the most qualified individuals to consider for each vacancy. And the President should promise to will pick the nominees from this list.
3. Change the confirmation process
It is time to create a more meaningful confirmation process. It is now customary that at their confirmation hearings, nominees refuse to answer questions about their views on any issues that might come before them. Their reticence only makes sense, though, if their views don’t matter. Senators have come to respect this position.
I believe this is wrong. It is appropriate for the President and the Senate to ask nominees about their views on key constitutional issues, though not how they would vote in specific cases. That obviously would depend on the record of the case, the briefs, the arguments, and the deliberations. For example, a nominee can be asked whether he or she believes that the Constitution protects a woman’s right to have an abortion or more generally, whether the Constitution includes a right to privacy.
The confirmation process is the most important check on an unelected judiciary. Given that a nominee’s judicial philosophy will matter significantly in how he or she decides cases, the Senate should insist, as a condition of confirmation, that the nominee answer detailed questions about his or her views on important constitutional questions.
4. Impose term limits for justices and regularized vacancies
Increasingly, I am asked, by lawyers and non-lawyers, whether there should be term limits for Supreme Court justices. The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.
There are many virtues to this approach. Life expectancy is dramatically longer today than it was when the Constitution was written in 1787. The result is that Supreme Court justices are serving ever longer. From 1789 until 1970, justices served an average of 15 years. From 1970 until early 2005, the average tenure expanded to almost 26 years. The four justices leaving since then had served an average of 28 years.
William Rehnquist, who died in 2005, was appointed by Richard Nixon in 1971. John Paul Stevens, who retired in 2010, was appointed by Gerald Ford in 1975.
Clarence Thomas was 43 when he was appointed to the Court and John Roberts and Elena Kagan were each 50 when they were appointed. If these justices serve until they are 90 – the age at which Justice Stevens retired – Thomas will have been a justice for 47 years and Roberts and Kagan each for 40 years. A person should not exercise that much power for such a long time. Term limits would also make it less likely that there would be a Court that is dominated by views that are far out of step with society’s needs, as occurred during the 1920s and 1930s.
5. Mandate strong ethics rules and recusals of Supreme Court Justices
With rare exceptions, one of the Supreme Court’s greatest strengths and virtues has been the impeccable ethics of its justices. Even rumors of ethical transgressions by justices have been few and far between. But there have been some troubling allegations in recent years.
Several steps should be taken to help ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards. First, the same standards that are applied to lower federal court judges should be applied to Supreme Court justices. Second, no longer should it be left to each justice to decide for him or herself whether to participate or be recused in a case. Either the other justices, or a panel of them — or even a panel of federal court of appeals judges — could be designated to rule on a recusal motion.
Finally, if a justice is disqualified from a case, a procedure should be devised whereby a retired justice (if one or more are alive), chosen at random, can participate as a justice instead.
These are just some of the reforms I propose. But together, I believe that they can create a Court that will do a much better job of enforcing the Constitution.
But this term was not an aberration. In a forthcoming book, The Case Against the Supreme Court (to be published by Viking on September 25), I argue that throughout American history, the Supreme Court has largely failed at its most important tasks of enforcing the Constitution and protecting the rights of minorities. The Supreme Court’s decisions about race – aggressively enforcing the rights of slaveholders, approving “separate but equal” and Jim Crow laws for 58 years, most recently striking down a key provision of the Voting Rights Act of 1965 – have made society worse. Throughout American history, the Court has failed to enforce the Constitution in times of crisis, allowing violations of basic rights without making the country any safer. And the Court, especially today, has consistently sided with the interests of business at the expense of workers, unions, and consumers.
In the last chapter of the book, I ask how the Court might be reformed to make it more likely to succeed at its most important tasks in the future. I know of no single reform that could have prevented all of the failures that I detail in the book. The Court is a human institution and like any other human institution it will have successes and failures. But I can identify at least five reforms, some large and some small, that would change the Court significantly for the better.
1. Clarify the role of the Supreme Court
I believe that many of the Court’s failures stem from the lack of a clear articulation and recognition of the proper role of the Court. The justices, individually and collectively, should articulate and embrace that the most important role of the Supreme Court is to enforce the Constitution against the will of the majority. The Court should recognize that the two preeminent purposes of the Court are to protect the rights of minorities that cannot rely on the political process and to uphold the Constitution in the face of repressive desires of political majorities.
2. Establish merit-based selection of justices (and federal judges)
There is nothing in the United States Constitution that prevents the President from creating a panel for merit-based selection of individuals to fill judicial vacancies on the Supreme Court and the federal courts and then promising to pick an individual from among the names forwarded to him. President Jimmy Carter did exactly this for federal court of appeals vacancies – he never got to select a justice for the Supreme Court – and the results were stunning.
Each panel should be ideologically diverse, including Democrats and Republicans, lawyers and non-lawyers. The role of the panel should be to present the President the names of at least two of the most qualified individuals to consider for each vacancy. And the President should promise to will pick the nominees from this list.
3. Change the confirmation process
It is time to create a more meaningful confirmation process. It is now customary that at their confirmation hearings, nominees refuse to answer questions about their views on any issues that might come before them. Their reticence only makes sense, though, if their views don’t matter. Senators have come to respect this position.
I believe this is wrong. It is appropriate for the President and the Senate to ask nominees about their views on key constitutional issues, though not how they would vote in specific cases. That obviously would depend on the record of the case, the briefs, the arguments, and the deliberations. For example, a nominee can be asked whether he or she believes that the Constitution protects a woman’s right to have an abortion or more generally, whether the Constitution includes a right to privacy.
The confirmation process is the most important check on an unelected judiciary. Given that a nominee’s judicial philosophy will matter significantly in how he or she decides cases, the Senate should insist, as a condition of confirmation, that the nominee answer detailed questions about his or her views on important constitutional questions.
4. Impose term limits for justices and regularized vacancies
Increasingly, I am asked, by lawyers and non-lawyers, whether there should be term limits for Supreme Court justices. The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.
There are many virtues to this approach. Life expectancy is dramatically longer today than it was when the Constitution was written in 1787. The result is that Supreme Court justices are serving ever longer. From 1789 until 1970, justices served an average of 15 years. From 1970 until early 2005, the average tenure expanded to almost 26 years. The four justices leaving since then had served an average of 28 years.
William Rehnquist, who died in 2005, was appointed by Richard Nixon in 1971. John Paul Stevens, who retired in 2010, was appointed by Gerald Ford in 1975.
Clarence Thomas was 43 when he was appointed to the Court and John Roberts and Elena Kagan were each 50 when they were appointed. If these justices serve until they are 90 – the age at which Justice Stevens retired – Thomas will have been a justice for 47 years and Roberts and Kagan each for 40 years. A person should not exercise that much power for such a long time. Term limits would also make it less likely that there would be a Court that is dominated by views that are far out of step with society’s needs, as occurred during the 1920s and 1930s.
5. Mandate strong ethics rules and recusals of Supreme Court Justices
With rare exceptions, one of the Supreme Court’s greatest strengths and virtues has been the impeccable ethics of its justices. Even rumors of ethical transgressions by justices have been few and far between. But there have been some troubling allegations in recent years.
Several steps should be taken to help ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards. First, the same standards that are applied to lower federal court judges should be applied to Supreme Court justices. Second, no longer should it be left to each justice to decide for him or herself whether to participate or be recused in a case. Either the other justices, or a panel of them — or even a panel of federal court of appeals judges — could be designated to rule on a recusal motion.
Finally, if a justice is disqualified from a case, a procedure should be devised whereby a retired justice (if one or more are alive), chosen at random, can participate as a justice instead.
These are just some of the reforms I propose. But together, I believe that they can create a Court that will do a much better job of enforcing the Constitution.
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