An Idea of the Day #16

A New Supreme Court

Thoughts on a revamped supreme court for polarized times

When I was in high school gov class, I was taught that the beauty of the American system was it’s balance of powers. That these 3 unrelated impartial branches of government acted as a gravitational pull, keeping the US spinning through the earth on its blessed course.

Recently, I’ve become worried that this story is increasingly out of touch with reality (if it was ever true at all). Whatever side of the aisle you are on, you can agree that our political world is more polarized than ever. Unfortunately, this polarization is bleeding into even the theoretically neutral judicial branch, most especially in the Supreme Court.

Nowadays, it’s commonplace for both sides to consider candidates for the highest court in the land by party, regardless of qualifications. The result is a bitter battle for control of the Supreme Court that mirrors the battle for Congress and the Presidency. What was meant to be a place full of justice and free from politics is increasingly under threat.

Before reading Why We’re Polarized by Ezra Klein, all I’d heard were policy recommendations that only fed the polarization. Democrats spoke of expanding the court while Republicans raced to pack it further. Neither of these responses address the underlying issue: the rapidly disappearing neutrality of the court.

In his book Klein summarized an interesting alternative that could satisfy both parties, and restore some of the neutrality of the past to the Court. The proposal comes from law professors Daniel Epps and Ganesh Sitaraman and Klein summarizes it well:

Epps and Sitaraman suggest rebuilding the Supreme Court so it has fifteen justices: each party gets to appoint five, and then the ten partisan justices must unanimously appoint the remaining five. Until all fifteen are agreed upon, the Court wouldn’t be able to hear cases. — Klein, Ezra. Why We’re Polarized (p. 260). Avid Reader Press / Simon & Schuster. Kindle Edition.

While I don’t think this is a perfect solution, it is an interesting one. I especially like the stipulations of unanimous appointment and requirement of agreement before trying cases, clauses which would force collaboration in an increasingly divided political world.

So far, my biggest concern with the proposal is lack of participation of other parties in the process (Libertarians, the Green Party & more are left out). However, the larger concern is that I think it’s unlikely to pass given it would require the party in power at the time to curtail their own power (a rare occurrence). But, it does give me hope that there is a solution to our current dilemma.

What do you think of it?

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