Most peo­ple prob­a­bly don’t under­stand the impor­tance of a pres­i­den­tial elec­tion when con­sid­ered in light of poten­tial Supreme Court appoint­ments.  Many more prob­a­bly just don’t care and that’s unfortunate.

The fact that President Trump was able to appoint three jus­tices — almost unheard of in mod­ern times – will have a pro­found influ­ence on the course of law in this coun­try for decades to come.

When Justice Breyer announced that he would be retir­ing at the end of the cur­rent court term, it became appar­ent that an oppor­tu­ni­ty pre­sent­ed itself to have the first lib­er­al appoint­ment to the court in a very long time.  Yet even a lib­er­al jus­tice appoint­ment will have lit­tle effect on the court con­sid­er­ing that it will only bring the court bal­ance back to its cur­rent state of six con­ser­v­a­tive to three lib­er­al justices.

For the past three appoint­ments, three Democrats vot­ed to con­firm Gorsuch, one Democrat vot­ed to con­firm Kavanaugh and no Democrats vot­ed to con­firm Barrett, all three of whom were appoint­ed by President Trump.

What this means is that it seems high­ly unlike­ly that any, or very many, Republicans will vote to con­firm a can­di­date nom­i­nat­ed by President Biden, if for no oth­er rea­son than payback.

And here’s why poten­tial appoint­ments to the Supreme Court are so impor­tant.  Justices are appoint­ed, essen­tial­ly, for life, at least, accord­ing to the Constitution (Article III, Section 1), “dur­ing good behav­iour” (spelling in orig­i­nal).

Only one Supreme Court jus­tice has ever been impeached, Samuel Chase in 1805.  But he was acquit­ted in the Senate and remained in office.

So per­haps it’s time to amend the Constitution one more time and change Article III, Section 1 to lim­it appoint­ments to the Court to a more rea­son­able period.

What is a rea­son­able period?

Everyone will have their own idea of what con­sti­tutes a “rea­son­able peri­od” but it should def­i­nite­ly not be inde­ter­mi­nate.  Indetermination is one of the prob­lems with the Constitution any­way, and large­ly with nation­al, state, and local laws as well.  Therefore the amend­ment must be spe­cif­ic and it should spec­i­fy a term that removes, to the extent pos­si­ble, pol­i­tics from the process.  The only way to do that is to make the appoint­ment of such dura­tion that it will like­ly span the terms of office of more than one President. 

With that in mind, a rea­son­able appoint­ment term might be fif­teen years.  This would pro­vide a peri­od of time for a new jus­tice to accu­mu­late knowl­edge and appre­ci­a­tion for the office but assure that he or she would not be removed from office at the whim of chang­ing polit­i­cal realities.

There have been attempts to “pack the court.” Perhaps the most famous attempt was made by President Franklin Roosevelt.  It was quashed by appro­pri­ate action of Congress.

Even President Biden appar­ent­ly toyed with the sug­ges­tion of adding mem­bers to the Court, but pub­lic opin­ion and opin­ion in Congress is def­i­nite­ly against it.

Is nine the appro­pri­ate num­ber of jus­tices?  It has not always been so and was only set­tled upon in the sec­ond part of the nine­teenth cen­tu­ry.  Nine may not be the right num­ber, but it seems to have worked rel­a­tive­ly well for a very long time.  So unless some­one can come up with a very good rea­son and ratio­nale for chang­ing it, it should remain as is.

But, at the very least, more peo­ple should become aware of the impor­tance of the Court, its impact on American soci­ety and law, and the con­di­tions under which it operates.

  • Chuck Witt

    Chuck is a retired archi­tect, a for­mer news­pa­per colum­nist, and a life­long res­i­dent of Winchester.