AS THE coronavirus pandemic
shuts down our country, the
U.S. Supreme Court has largely continued its work. This spring, the high court is scheduled to hear arguments in one of the most politically-charged cases of the term: whether President Trump must follow the law and provide his tax returns to the House of Representatives and other investigators.
In this election year, the court is also scheduled to hear other cases with significant political ramifications. While the Supreme Court may try to stay above the political fray at times, this is no longer the norm. It is therefore not surprising that public confidence in the Supreme Court is near a low point, declining markedly over the last 10 years.
In the last 20 years, the Supreme Court decided a presidential race in favor of a Republican over a Democrat (Bush v. Gore); tilted the entire political landscape toward wealthy donors and corporations (Citizens United v. FEC and McCutcheon v. FEC); made major rulings severely limiting voting rights (Shelby v. Holder and Husted v. APRI); and failed to intercede in abusive partisan gerrymanders that strip millions of Americans’ right to fair representation (Rucho v. Common Cause and Gill v. Whitford).
Each of these 5–4 rulings disproportionately harmed Democratic voters and benefitted Republicans. Coupled with the fact that the court is generally seen as secretive and inaccessible, many more people are viewing the Supreme Court with skepticism.
An October 2019 poll showed that 57 percent of Americans agree with the statement that the court “gets too mixed up in politics.”
If the court is seen as providing two different systems of justice—one for Republicans and one for Democrats—our democracy will fail. Adopting three steps could help restore faith and confidence that the court will prioritize facts and reason above partisanship.
Judicial code of conduct for justices.
All federal U.S. judges are bound by an agreement called the Code of Conduct for U.S. Judges that helps ensure they follow certain ethical standards.
However, Supreme Court justices are excluded. In fact, Supreme Court justices often travel around the country to give speeches, participate in conferences and receive awards from inherently political organizations, which can all be paid for by groups that bring cases before the Supreme Court.
These continued possible conflicts of interest were revealed in the most recent Supreme Court personal financial disclosure forms. Requiring justices to be bound by the Code of Conduct for U.S. Judges could be achieved by passing the Supreme Court Ethics Act, which was contained in Congressman John Sarbanes’, D–Md., transformative For the People Act that passed the House of Representatives in March 2019.
Term limits and/or mandatory retirement for justices.
When the Founders created the Constitution, the average life expectancy for an average American male was about 38 years old. The Founders clearly didn’t expect justices to serve on the court for 30 or 40 years. Term limits (coupled with mandatory retirement) is an idea with ideologically diverse (at least partial) support, ranging from Senators Ted Cruz, R–Texas, to Bernie Sanders, I–Vt.
Providing term limits with mandatory retirement once justices reach a certain age, a practice that a number of states use, would help ensure that each president gets to nominate a minimum number of justices. Additionally, it would help prevent Senate Republicans from repeating their blatant power grab by refusing to allow President Obama’s Supreme Court nominee, Merrick Garland, from even receiving a confirmation hearing in 2016.
The Supreme Court is sometimes viewed as opaque, inaccessible, and technologically old-fashioned. A chief justice of a state Supreme Court described the U.S. Supreme Court as “one of the last major institutions of Western civilization that has not entered the 21st century technologically.”
Although the Supreme Court posts online audio recordings of cases at the end of each week, why not make the Supreme Court more accessible by livestreaming audio of cases for everyone to hear? Taxpayers who pay the justices’ salaries would have a better understanding of what cases are heard and—it is hoped—have a greater appreciation of our legal system.
There are certainly merits for considering live video in the court as well, as nearly all state Supreme Courts allow, but allowing live audio at a minimum would be a good start.
Other practices, such as Senate Majority Leader Mitch McConnell doing public events with justices, members of Congress directing heated rhetoric at justices, and President Trump telling justices to recuse themselves, also unnecessarily politicize the Supreme Court.
If the court is seen as providing different systems of justice depending on political orientation, our imperfect system of justice will fail. While politics can never completely be removed from the Supreme Court, adopting these three steps can help restore faith and confidence that the court will put “we the people” above partisanship.