Tuesday, October 18, 2016

The Supreme Court: It Doesn't Have to be This Way

There is nothing in the Constitution which says there have to be 9 Supreme Court Justices, nothing which says that every Justice has to have a vote in every case for the rest of his or her life.

Currently,  Presidential elections are corrupted by the looming presence of the Supreme Court. You may vote for a creepy anathema, like Donald Trump, simply to vote for a Supreme Court to your liking, and apparently this is what is driving significant numbers of Republicans to vote for a lunatic to hold the nuclear codes, to protect the next 30 years for a Supreme Court which hews to a Scalia version of backwardness.

But suppose Congress voted in a different system? 

No constitutional amendment would be require to enact a law which says each President gets 2 Supreme Court Justices per term, and only the 9 most recently appointed Justices get a vote on decisions. You can still serve, still ask questions during oral arguments, still write opinions, but you don't get to vote on the decision.

A two term President would have four Justices, not a majority but a significant influence on the Court. When the next President arrives, he can start to change the Court.

What would be lost in this arrangement?
Clearly, the idea of life time appointments has been sustained by the idea that judges should not be political players, and should provide a "stabilizing" effect to restrain the wild swings in political passions like the one which brought the Tea Party to power in 2010.

But it has become abundantly clear Supreme Court Justices are every bit as political as members of the Executive and Legislative branches. They pre judge cases based on their social and political values and they are much more predictable than either the President or than most Congressmen. You know exactly how four Justices on the right and how four Justices on the left will vote with a certainty which exceeds what you know about your own Congressman, unless your Congressman is Frank Guinta, in which case you can simply ask: What would the stupidest vote be?

We have, in fact, lived a lie, when it comes to the Supreme Court. We have tried to make believe the Justices are like baseball umpires, who call balls and strikes without regard to who is batting or who is pitching. But nothing can be further from the truth. Our current system insures you have umpires who call balls and strikes based on who is pitching.

That the Republican Senate has refused to vote on President Obama's nominee is only one in a long list of observations which speak to how completely political the Court is.  Now Senator John McCain is saying if Hillary Clinton is elected President, the Senate will simply refuse to confirm any of her nominations. Oh, there is a politically neutral Court for you.

It's not that the Court is more political now--it's simply we cannot continue pretending the Court is not political.

We should recognize this reality, accept it and agree the Court will swing, more slowly, but still swing, as the political reality of the country swings.  If we have eight years of Donald Trump, by the end of that time abortions will be illegal, campaign financing will be a free for all, prayer will return to classrooms, marriage will be one man one woman, sex between consenting adults will only be legal if it's heterosexual and it will be mandatory if Donald Trump wants to have sex with the woman in question.

But, with the next President, say, Michelle Obama, all that will swing back in the other direction.

We live in a dynamic society.  Let's not have a Supreme Court which prevents us from living in the present.

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