Booker’s bill can help fix a broken Supreme Court | Editorial

Published: Aug. 04, 2022

The Supreme Court is out of step with the American ethos. Its conservative majority has stripped the constitutional right to abortion, expanded gun rights in a country with 400 million firearms, shredded environmental protections, unleashed the power of money for special interests, facilitated partisan gerrymandering, eviscerated voting rights, kneecapped public sector unions, and denied health care coverage to millions of poor people.

And this rightward drift has occurred under a cloud of illegitimacy -- manipulated by a Senate Republican leader who flouted the rules and weaponized by a Republican president elected without a popular majority, with its members hand-picked by the Federalist Society, which is funded by dark-money billionaires who often have business before the court.

So we welcome a bill proposed by Sens. Cory Booker and Sheldon Whitehouse (D-R.I.) called the Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act, which seeks to restore balance and legitimacy to the highest court by imposing term limits and authorizing the president to nominate one new justice every two years.

Given the hegemony of this radical majority, such a measure is long overdue, even though it is, for now, aspirational – an idea that still lacks political footing, such as ranked-choice voting and single-payer health care.

The key tenet is eliminating the absurd lifetime appointments for Supreme Court justices and reducing their terms to 18 years. If the TERM Act became law, the nine current justices would be required to retire one at a time, with new justices appointed under the alternate-year schedule.

Sitting justices would be replaced in order of seniority. This could be only way to repair this court’s eroded integrity: For example, Justice Clarence Thomas -- who is married to a woman who supported the Jan. 6 insurrection, and who took more than $200,000 from a right-wing group that had a case before her husband’s court -- would be the first to go.

Thomas is just one reason why the court is “facing a crisis of legitimacy,” as Booker put it, and he added that “this crisis is the result of radical rulings that discard years of legal precedent and that are at odds with the views of the American people, ethical lapses, and the politicization of the Supreme Court confirmation process by Senate Republicans intent on using raw political power to transform the Court.”

Whitehouse was more blunt: “The Supreme Court has been captured by big special interests,” he said. “Over and over again, the six Republican justices trample precedent to side with big right-wing donors. It’s a travesty.”

Term limits could eliminate the problem of justices who hang on too long for political and personal reasons, even when they are in poor health.

Justice Stephen Breyer, a man of great vitality even at 83, received universal praise for retiring after 28 years for one reason: He avoided the foreseeable and history-altering mistake made by the beloved Ruth Bader Ginsburg. She imagined herself irreplaceable and, in the near term, immortal. But her decision not to retire while President Obama was in office cost the liberal wing of the court a crucial seat.

Some argue that expanding the court is a better way to save it, but that would only escalate the partisan warfare that has led us here. Nine justices may not be specified in the Constitution, and padding the court feel like appealing payback to a perpetually frustrated Democratic minority, but it will undoubtedly be answered in kind by the other political side.

Term limits, rather, would better prevent a sudden ideological tilt. Lest anyone forget, the process was irretrievably politicized by Sen. Mitch McConnell, whose venality has led one historian to call him the “gravedigger of American democracy.”

After Antonin Scalia’s death in 2016, McConnell held that seat open for a year and refused to give President Obama’s nominee, Merrick Garland, a hearing. McConnell, inventing the rules as he went along, said nominees should not be confirmed in the final year of a presidential term. But after Ginsburg’s death in Sept. 2020, McConnell pushed through Amy Coney Barrett’s confirmation in just a few weeks – and days before Donald Trump faced re-election – and his only response to howls of protest was a wink and a smirk.

He has since hinted that should Republicans regain the Senate, he will block President Biden from filling any Supreme Court vacancies, which seems completely plausible.

Regardless, the Supreme Court is a broken institution. Weeks after it erased abortion rights, an AP poll found that whopping 67% of Americans said they favor term limits or a mandatory retirement age. Our guess is that SCOTUS rejected that idea by a 6-3 margin.

That poll also showed a sharp increase in the percentage of Americans who have “hardly any” confidence in the court: That figure stands at 43%, which has spiked from 27% three months ago.

Booker’s bill is a response to that frustration. Does it have legs? Probably not, but at least one branch of government responds to the needs of Americans.

 

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published this page in News and Politics 2022-08-05 02:31:56 -0700