Off-Balance: Five Strategies for a Judiciary that Supports Democracy

The Supreme Court is facing a democracy deficit, where the number of justices and the length of their terms have created a Court that does not reflect the views of the American public. This point is underscored by the fact that four out of five members of the conservative majority were nominated by presidents who lost the popular vote. The current structure of the Court encourages and allows justices to side with elites without having to face political consequences of their decisions.

Justices are among the most important rule-writers for the U.S. economy and our overall democracy, so it is vital that Congress reinvigorates the Court and rebuilds public confidence. In Off-Balance: Five Strategies for a Judiciary that Supports Democracy, Roosevelt Fellow Todd N. Tucker explores a menu of options for policymakers, including:

1) Adding justices to the bench through Court expansion;

2) Removing justices through impeachment;

3) Changing the jurisdiction of the Court;

4) Ignoring or overriding Court decisions; and

5) Rewriting the Constitution to allow term limits, elect justices, or eliminate judicial review.

Each of these strategies comes with specific advantages and disadvantages and each has precedent in U.S. political history. While any of these options are feasible, we find that one of the most compelling ideas for Court reform would be adding a new justice every two years, with each justice serving a total term of 18 years. This option removes the element of chance of waiting for a Court seat to be vacated, while preserving the judicial independence that would be lost with renewable terms. Bold proposals to rebalance the Court’s role in public life, such as those outlined in Off-Balance, are essential to ensuring the health of America’s democracy.

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Originally published at Roosevelt Institute.