Read

Search form

Rebalance the Scales Of Justice: Here Are Five Ways to Reform the Supreme Court

Rebalance the Scales Of Justice: Here Are Five Ways to Reform the Supreme Court
Mon, 7/21/2014 - by Erwin Chemerinsky
This article originally appeared on BillMoyers.com

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.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.

Originally published by BillMoyers.com

Sign Up

Article Tabs

Paris climate accord, COP21, carbon emissions, 2 degrees C, emissions reductions, renewable energy transition, renewable energy investments, clean energy investments, solar power, wind power, fossil fuel divestment

Changing the way the world is powered means big spending – and huge investment opportunities – with energy finance models suggesting clean power investments need to rise by an additional 75 percent, to $12.1 trillion, in the next 25 years.

Chinese monetary policy, Asian Infrastructure Investment Bank, Chinese currency, Chinese currency manipulation, Special Drawing Rights, rising dollar

If war and hostilities between the great powers are to be avoided, the future of global capitalism may well rely on a combination of Western markets and institutions backed up by totalitarian institutions like the regime in Beijing.

Few police shootings of Latinos make national headlines – a lack of attention and outrage that stems from a poor understanding of the history of state violence against them in the U.S.

U.K. housing prices, soaring home prices, soaring rent costs, Eviction Resistance, housing bubble mortgage-backed securities, Great Recession, rising homelessness

Housing prices in London have risen by 50% in the last five years – and when the UK property bubble goes boom, it will be proportionally bigger than the U.S. housing bust at the onset of the financial crisis in 2007.

Transatlantic Trade and Investment Partnership, TTIP, corporate trade deals, Investment Court System, German Magistrates Association, Investor State Dispute Settlement, ISDS, Global Justice Now

The German Magistrates Association (DRB) last week dealt a major blow to the Transatlantic Trade and Investment Partnership, as judges said special courts allowing firms to sue countries were unnecessary and "had no legal basis."

This week we passed the five-year anniversary of Tahrir Square, but do we even know – or care – what's happening there now, and do we see the parallels with what's going on right here? We speak with an Egyptian activist who sets the record straight.

Posted 5 days 16 hours ago
Chinese economic integration, Chinese financial power, G7 nations, emerging market power, Asian Infrastructure Investment Bank, Asian Development Bank

China and other emerging economies, frustrated by their lack of representation in global financial decision-making, could potentially create their own parallel institutions and, in the long term, construct a parallel or opposing economic system altogether.

Posted 6 days 21 hours ago

The media, which came to the story so late, can only process so much – but if you live in Flint or the State of Michigan as I do, you know all too well that what the greater public has been told about the water crisis only scratches the surface.

Posted 4 days 2 hours ago
Flint water poisoning, Flint water contamination, Flint lead poisoning, water privatization, Rick Snyder, Darnell Earley

Incidences of poisoned water, not isolated to Flint, are snowballing into a colossal emblem of government's prioritization of corporate interests and profit over the basic health and human rights of citizens.

Posted 4 days 20 hours ago

Congressional hearings on the Flint water crisis were convened on Wednesday – but two people who should be in the hot seat weren't there. Next up, Iowa Caucus: Is this what Democracy looks like? And Obama signs the TPP.

Posted 4 days 2 hours ago

The federal agency warned of an unfolding toxic water crisis in Flint but was “met with resistance” by Michigan authorities, a fiery congressional hearing into the city’s public health disaster revealed Wednesday.

By 10:20 a.m. on Thursday, up to 1,000 protesters were at the Sky City Convention Centre. Their aim? Disrupt proceedings for as long as possible, and by late morning they were succeeding in shutting down large parts of the capital.

money in politics, Citizens United, super PACs, campaign finance laws, corporate campaign financing,

The presidential campaign is now a super PAC-fueled arms race where almost everyone has a money bomb – half the cash raised so far came from those groups, which have no contribution limits.

U.K. housing prices, soaring home prices, soaring rent costs, Eviction Resistance, housing bubble mortgage-backed securities, Great Recession, rising homelessness

Housing prices in London have risen by 50% in the last five years – and when the UK property bubble goes boom, it will be proportionally bigger than the U.S. housing bust at the onset of the financial crisis in 2007.

Responding to tough talk by presidential candidates about price gouging by drug companies, pharmaceutical executives have told investors that they are working actively to influence the political debate.