Ben Buchwalter

A Modern Court For Modern Dudes and Dudettes

Of the three branches of government, the Judicial is the only one that is structurally designed to resist change. Allowing Supreme Court Justices life tenures, for example, result in outdated bias toward modern issues. After David Breyer was appointed, the Court didn’t see a change for more than ten years, when John Roberts was confirmed as Chief Justice. That’s a very long time for a branch of government to remain static.

We get to pick a new President every four years, and Senators and Congressmen are rotated out regularly. Representatives in the House have short terms for the purpose of getting new ideas in there more quickly than in the Senate. So if change is important in Congress, why not in the judicial branch?

The Supreme Court should undergo two changes to become more diverse and representative. First, Matt Yglesias says that the Court should do away with lifelong tenure and set up term limits of 18 years. Under this system, a new judge would be appointed every two years, ensuring that every President appointed at least two judges. This way, the Court’s ideological composition would mirror the public’s ideology that elected the Presidents.

As Yglesias wrote in a similar post last fall, keeping the current system is “just a pure example of status quo bias.

There is much speculation about who President Obama will appoint to fill David Souter’s seat on the Supreme Court. Some say that the pick should adhere to a strict interpretation of the Constitution. Doing so would further show the Supreme Court to be an institution ruthlessly opposed to change. Maybe we should view the Constitution more like most religious Americans view the Bible. It has some great lessons about how we should live our lives, but we need to use it as a guide rather than a rulebook. As Jed Bartlett famously pointed out in the West Wing, some rules in the Bible are crazy and make no sense in our modern time.

Sonia Sotomayor, the appeals court judge rumored to be a front runner for the appointment, has been slammed by conservative cable news shows all week for saying that courts of appeal are “where policy is made.” Many view this as a tacit approval of activist judges and a sign that Sotomayor would dominate the court as an outspoken liberal.

Sotomayor’s statement was definitely poorly worded, but I’m not sure the sentiment is wrong. Schools might not have become integrated as quickly if the Supreme Court did not make the Brown v. Board of Education precedent. That led directly to policy changes that dramatically helped the Civil Rights Movement. The Court used the spirit of the Constitution to extend human rights and affect policy, not make it.

A more inclusive judicial philosophy and the implementation of term limits could greatly improve the Supreme Court’s accessibility and representation. And though these changes aren’t likely (at all), I hope that Obama will appoint someone like Sotomayor to the court, who will apply the Constitution’s lessons to modern issues like gay marriage and abortion.


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