Can you name a single Supreme Court justice? If the answer is yes, good for you! And if not, don’t worry: More than half of people likely to vote in the United States cannot do so either. Yet, the Supreme Court’s recent decision overturning Roe v. Wade has highlighted how deeply Supreme Court decisions matter to the country. This news has also resurfaced a number of controversies surrounding the Supreme Court, including its politically biased nature and its relationship with precedent.
Reform is necessary to restore the stability and legitimacy of the Court, especially given how the current American political landscape has exacerbated these long-standing issues. One means to this goal is an enactment of an 18-year term limit for Supreme Court justices in combination with a stricter commitment to following precedent set by past cases.
A shift in structure and function for the Supreme Court would be nothing new. Initially a comparatively weak and inactive branch of government, the Court’s power of judicial review was not solidified until 15 years after the ratification of the Constitution. For nearly a century and a half, the Court moved between various buildings and rooms that Congress decided it could spare. It also fluctuated in size, always between five and 10 justices, before settling on nine justices in 1869. In a slow and haphazard manner, the Supreme Court gradually became the high court of nine justices in a grand building in Washington tasked with, among other things, interpreting which rights the Constitution protects.
Although the Court’s rulings are ideally objective and therefore apolitical, the Supreme Court has repeatedly struggled to fill these impossibly large shoes of nonpartisanship and instead exists as a matter of fierce political controversy. Since justices are nominated and confirmed by elected officials, the political distribution of the Supreme Court should theoretically be in line with voting patterns, but the numbers tell a different story. In the years since 1976, Republicans and Democrats have each won six presidential elections, but Republicans have successfully confirmed 11 justices to the Supreme Court, whereas Democrats have only confirmed five. Furthermore, inconsistent decisions regarding hearings for Supreme Court nominees during election years provide more opportunities for political meddling.
These issues have compelled a wide range of people and groups, from members of Congress to advocacy organizations, to propose an 18-year term limit for Supreme Court justices, which would ensure each president the opportunity to nominate a justice every two years. This regularity of nominations would lessen the currently immense political weight of each retirement and death, and over time, the Court’s political composition would tend towards a closer reflection of voting patterns.
While fluctuations in the political split of the Court would continue, the regular turnover of justices would lessen the long-lasting impacts of those fluctuations and ensure that they represent the American public’s voting preferences.
An 18-year term limit, interestingly, would also guide the Court closer to its original turnover rate. From the Court’s founding in the 18th century until 1970, each justice served for an average of 15.2 years. This norm has since changed: On average, the four most recent justices to depart the Court served nearly double that length. An 18-year term limit would return the term lengths of justices closer to their traditional duration.
Since the Supreme Court is theoretically apolitical and objective, shifts in the political leanings of the Court should not have drastic impacts on its rulings. Yet, the recent Supreme Court decision to overturn Roe v. Wade provides reason for concern about the stability of Court rulings even with the implementation of judicial term limits.
An 18-year term limit will help reel the Court towards legitimacy and stability, but alone, it is inadequate. To properly serve its function, the Court must also re-commit itself to stare decisis.
Through a multitude of cases since its conception, the Supreme Court has gradually developed the doctrine of “stare decisis,” or the act of following precedent. While written nowhere in the Constitution, stare decisis plays an important role in finding a balance between overturning past rulings and providing consistency.
Consider same-sex marriage as an example. One can imagine the havoc that would ensue if a new Supreme Court ruling switched the Court’s stance every couple of years because the current justices found the judgment of their predecessors to be erroneous.
On the other hand, sometimes departing from precedent is essential in order to rectify past rulings. The unanimous 1954 Brown v. Board of Education ruling, which officially declared that segregated educational facilities were “inherently unequal” and therefore unconstitutional, effectively overruled previous Supreme Court rulings that protected segregation. While the Court did not specifically mention stare decisis in Brown, it discussed the “effect of segregation on public education” and the “modern authority” which trumps the “psychological knowledge at the time of Plessy v. Ferguson.” This reasoning implies the Court justified overturning Plessy because of its harmful effects and dated logic. Legal scholars have repeatedly pointed to the case as an example of when a court must overrule a prior decision.
Stare decisis does not mean that we ignore fact and blindly follow the most recent ruling on any issue; rather, it involves examining a ruling’s longevity, its indispensability to American society, and any developments since the ruling was made that reframe our understanding of the topic.
In an attempt to strike this balance, the Court has relied on vague interpretations of what the doctrine has meant in the past and what it should mean in the future.
In 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey depended heavily on stare decisis to uphold and modify Roe. It specifically mentioned the Brown decision, stating that because the justification for segregation used in previous cases “was so clearly at odds with the facts apparent to the court in 1954,” the Court was “not only justified but required” to reexamine its prior decision. In the Casey decision, the Court proceeded to state that because the understanding of the facts underlying Roe had not changed, the Supreme Court had no right to disregard precedent. It therefore upheld Roe’s central holding and the right to abortion.
Yet on June 24, the Supreme Court released its decision to overturn both Roe and Casey. In the opinion, Justice Alito wrote that “[s]tare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start.”
In the 49 years since the Supreme Court decision on Roe, no game-changing understanding of how the ruling affected American society enlightened the justices as it did before Brown (note that while in Plessy they reasoned that separate could be equal, by Brown the contrary was nearly impossible to ignore). Yet this year, Justice Alito and others on the Court decided that despite the dozens of Supreme Court cases that have pondered the constitutionality of a right to abortion and contraceptives and repeatedly upheld it, despite the plethora of Americans who depend on that freedom, despite a steady understanding of the implications of that choice, Roe was “wrong from the start.”
The Supreme Court holds immense power in the United States government. The more it is used as a political tool, the more dangerous it becomes. An 18-year term limit would reduce the political weight of Supreme Court nominations and lessen the amplitude of swings of the political bias of the Court. A stricter application of stare decisis would further reestablish the consistency and stability of rulings that the country depends on. For an 18-year term limit to effectively solve long-standing issues of the Court, this disregard for stare decisis cannot continue. Ultimately, in abandoning that stabilizing doctrine, we are left with Justice Sotomayor’s question for the petitioner in the Dobbs hearing: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Image by Yume Photography is licensed under the Unsplash License.
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