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.