Appointing new Supreme Court Justices is one of the most important and influential functions of the president and Congress. Though it seems a democratic system would enable each president and session of Congress to have equal influence in shaping the Supreme Court, this is not the case. Historically, some presidents and sessions of Congress have had substantially more opportunity to appoint new justices than others. This is a flaw in the current system. To fix it, we could create a system that is fairer to elected officials and that better represents all citizens over time.
The Supreme Court Justices currently serve lifetime appointments. Though the original intent is sound, lifetime appointments have led to inconsistencies in the level of power each elected official has over the court’s make-up. Justices leave the court for various reasons — resignation, retirement, impeachment, death, etc. When they don’t leave the court at a consistent rate, the resulting power to appoint new justices is unequally distributed across presidential terms and congressional sessions.
When citizens vote for a president or members of Congress, they know these officials have the ability to name new Supreme Court Justices. The likelihood of them actually exercising this power, however, is a lottery at best. Depending on the year, we get a weaker or stronger version of Congress or the president when it comes to naming new justices. In an ideal system, the executive and legislative branches’ ability to fully execute their governmental powers wouldn’t vary from term to term.
Our flawed current system of appointing justices to the court has received minimal attention in the last 30 years because the number of court appointees per president appears to have been roughly equal (mostly by accident, or possibly savvy timing by retiring justices). Presidents Bill Clinton, George W. Bush, and Barack Obama all appointed two justices each during their respective two terms in office, but this glosses over substantial differences in appointments across congressional sessions:
- Of the 12 Clinton-Bush-Obama era congressional sessions, only three (25%) confirmed one or more justices to the court. The other nine sessions (75%) didn’t confirm any justices.
- Since 1945, 43% of congressional sessions have confirmed zero justices to the court, 30% have confirmed one justice, and only 27% have confirmed two justices.
Prior to the Clinton-Bush-Obama era, there were also significant differences in appointments across presidential terms:
- Presidents Harry Truman, Dwight Eisenhower, and John F. Kennedy (+ Lyndon Johnson) all appointed four or five justices each over two terms — double the appointment rate of Clinton-Bush-Obama.
- President Richard Nixon appointed five justices in five years (a majority of the court!) while President Jimmy Carter appointed zero justices over four years.
- President Ronald Reagan only appointed one justice in his first term, but President George H.W. Bush appointed two in his first term.
- And, right now, President Donald Trump is on his second appointee in two years and could possibly appoint as many as three more (given the ages of the current justices).
In the current system, some presidents or sessions of Congress get to wield much more influence on the Supreme Court than others, simply due to timing. But a better system is possible.
The original intent of a lifetime appointment was to ensure judicial independence. But sufficiently long tenure limits for justices can achieve the same effect. Tenure limits wouldn’t affect justices’ actions during their time on the court; they would simply shorten their time on the job. Tenure limits would also stabilize the rate of new justices replacing existing justices over time, solving one of the major problems with our current system.
The main aspects of the new system would look like this:
- Increase the total number of seats on the Supreme Court from nine to 11.
- All 11 justices would serve 22-year terms on the court, with each term starting two years apart.
- One new justice is appointed to the court every two years, replacing the sitting justice whose 22-year term is complete.
This new system would mean that each presidential term would have equal power in naming two of the 11 (18%) members of the court (similar to the influence a president would have if they appointed two of the nine [22%] members to the current court). A two-term president would be able to appoint four justices, at most, meaning that one president would never be able to appoint the majority of the court. Each session of Congress would also have equal power in confirming one new member of the court every two years.
Each justice’s 22-year term is similar to the current average tenure length (~20 years). Tenure limits could also minimize the concern of justices serving into old age with a possibility of declining health. Supreme Court membership would turn over at a more regular and slightly faster pace over time (with a new majority of members on the court every 12 years), allowing the court’s opinions to better mirror the prevailing opinions of the country and our society’s accelerating rate of change.
One president would never be able to appoint the majority of the court.
Of course, no system is without hiccups. We’d need to create a mechanism for replacing justices who don’t serve out their full 22-year term (due to death, resignation, etc.).
One option would be the president and/or Congress appointing backups for each justice during the appointment process, similar to the presidential line of succession (vice president, speaker of the house, etc.). Another possibility is that the seat’s appointing party (Democrats or Republicans) could also retain the right to appoint a replacement justice over the course of a seat’s 22-year term, even if the opposing party was in power at the time of making the replacement.
There is flexibility built into this proposed system as well. The specific numbers could easily be adjusted. Keeping the court at nine members — with 18-year tenure limits, and one new justice every two years — would also be an option. A 15-seat court, with 15-year terms and one new justice every year, could also potentially work.
The most difficult part of this proposed new appointment system would likely be coming up with a viable transition plan from the current system. Any change would need to keep the Supreme Court running smoothly during the transition period. It would be something both Democrats and Republicans would need to actually agree on and implement jointly. (Hint: That second part is way more difficult than the first.)
To work, the new appointment system would need to be presented in such a way that it could convince each party that it benefits them (or, at least, that it doesn’t actively hurt them), and that they could could potentially win more influence under the new system. (Indeed, discussing implementation of this plan highlights a bigger issue with U.S. government: the current two-party system. I’ll punt that problem for another essay.)
Many of the problems in government seem to have either difficult solutions or no solutions at all. But the problem of the makeup of the U.S. Supreme Court has a relatively easy, and feasible, solution. It is possible to do a better job of fairly appointing justices to the Supreme Court.