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Commentary: The Supreme Court is broken and needs to be reformed

Sarah Turberville, The Fulcrum on

Published in Political News

So we need to diffuse power on the Supreme Court so each individual justice is less influential while they serve. This could take the form of having the court hear cases in smaller, randomly assigned panels like the federal appeals courts do, or even rotating members on and off the Supreme Court, which could also make it harder for partisans to create blocs of justices who routinely vote together.

The use of screening committees to vet and recommend nominees for the Supreme Court could also reduce the likelihood that partisans could stack the court with justices who would be favorable to their views. Such committees are already employed successfully at lower levels in the federal court system and in some states.

These sorts of reforms, combined with term limits, could dramatically alter the stakes of confirmation. With predictable openings, a set term of service, and less power vested in each individual, Supreme Court confirmations would no longer carry the political significance they do now.

As with any proposal, the devil is in the details: The commission seems to think that the creation of term limits or a requirement that the court sit in panels, would raise constitutional concerns. But that should not be taken for a given. There is little dispute that the Congress could, by statute, continue to expand the size of the court. It makes little sense that Congress could not implement reasonable structural reforms — like having the court sit in panels — that could help make decision-making less predictably partisan, but that Congress could, on the other hand, expand the size of the court to 200 or 2,000 people.

And here too, the commission has the chance to advance the debate. The Constitution can be amended for a reason, but ruling out any reform that requires an amendment simply ensures the status quo.

 

With the Supreme Court's 2021 term fully underway, we are once again reminded just how large the court looms in the political and social life of our nation. We hold our collective breath and wait for the highest court to weigh in on a slate of hot-button issues. This term alone it has decided to take on gun rights, abortion and state secrets, with many more case selections to come. It may very well render decisions that will fundamentally shape the public and private lives of millions of Americans for worse or for better.

In short, the Supreme Court is supremely powerful. But in our democracy, it shouldn't be. The commission's next draft will come next month and we hope it will seize this opportunity to legitimize some long overdue reforms to an institution that hasn't really changed since the founding of the republic.

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