Too Many Lifetimes

No matter your views on abortion, we have all been shocked by the unprecedented leak of the draft opinion by Justice Alito, supported by five of the conservative justices, that would overturn Roe v. Wade. It would leave it up to states whether to allow abortion or ban it. About twenty states are almost certain to outlaw abortion if Roe is overturned. While every national poll shows the majority of Americans support a woman’s right to choose what to do with her body, I’m not here to argue abortion rights. But rather the institution of the Supreme Court. It’s supposed to be above partisan politics and interpret the Constitution. That’s has been eroded. The court is very much a political body and it’s helping fuel the serious divisions in the country.

Recent history gives us glaring examples. When conservative Justice Antonin Scalia died suddenly in February, 2016, President Obama, a Democrat, nominated Merrick Garland, who many consider a moderate, to replace Scalia. Mitch McConnell, the conservative Republican Majority leader of the Senate at the time, wouldn’t even give Garland a hearing. He used the political excuse that the seat should be filled by the next president who wouldn’t be in office for almost a year. McConnell was hoping Republican Donald Trump would get elected and nominate a conservative. He got his wish. McConnell changed his view when liberal Justice Ruth Bader Ginsburg died in September, 2020. With his chance to change the balance of the court, he rammed through the nomination of conservative Amy Coney Barrett with only three months before the next election,

Presidents get to select who they want to be on the court with the consent of the Senate. They are political picks. With lifetime appointments, a justice appointed at fifty could sit on the court for over thirty years. All federal judges get lifetime appointments. They are influencing society for decades. Presidents can only serve two four year terms. But all other elected officials on just about every level are faced with having to get re-elected to keep their job. Justices in their eighties are timing their retirement around who is president, who has the majority in the Senate, and when is the next election.

One solution is term limits for the justices. One proposal by Northwestern Law Professor James Lindgren is eighteen year terms for justices. It would be gradually phased in. This would allow a new justice to be nominated in each odd year, giving a president two nominees for each four year term. There are arguments for and against. Lindgren says, “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirements for political reasons, reduce animosity in confirmation, and return to traditional levels of judicial independence.” Columbia Law Professor Thomas Merrill says term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices with the outcome of contested elections for president. Merrill contends, “Term limits would recast the role of the court to reflect presidents’ political views not the more subtle role prescribed in the Constitution.” This is exactly what’s happening now with no term limit.

Polls show the American public’s opinion of the Supreme Court is declining. As the court  tackles these critical and emotional issues that effect us all, we need have faith in the system that put those nine people in a position to change all of our lives. There is now an eight foot fence around the Supreme Court building because of reaction to the potential abortion decision. It would take a constitutional amendment to end lifetime appointments for justices. In the current political climate that’s not going to happen. In the mean time, we all have to live with too many lifetimes.