When John Paul Stevens was appointed to the U.S. Supreme Court by President Gerald Ford in 1975, he was confirmed by the Senate in a 98-0 vote.
Twenty years before, when John Marshall Harlan II was appointed to the U.S. Supreme Court by President Dwight Eisenhower, the Senate gave its assent in a 71-11 vote.
It’s hard to fathom now, in these profoundly polarized times, but battles over the U.S. Supreme Court were once far less bloody and brutal than they have been for the last couple of decades. The fight over President Trump’s nominee to replace Ruth Bader Ginsburg on the Supreme Court could well make the ferocious clashes over giving Brett Kavanaugh and Clarence Thomas lifetime appointments to the court seem like polite, debate society exchanges carried out over tea and crumpets.
With Democrats and Republicans so divided ideologically, each side has reason to gather their forces and head into battle with each Supreme Court vacancy. Thanks to longer lifespans and the desire of presidents to leave a lasting imprint on the court, justices can end up serving 30 years or more. Stevens was 90 when he retired, and had been on the court for 35 years.
We shouldn’t just accept this as something we can’t change, like the weather. People on both sides of the aisle have put forth ideas that would lower the temperature in Supreme Court fights.
During his bid for the Democratic presidential nomination, Pete Buttigieg, the former mayor of South Bend, Ind., offered a proposal to expand the number of seats on the nation’s highest court from the current nine to 15, with five justices affiliated with Democrats, five with Republicans, and five more apolitical judges chosen by the sitting 10 justices. Buttigieg explained that “we’ve got to get out of where we are now, where any time there is an opening, there is an apocalyptic, ideological firefight. It harms the court, it harms the country and it leads to outcomes like we have right now.”
In his 2012 bid for the Republican presidential bid, onetime Texas Gov. Rick Perry proposed limiting the terms of justices to 18 years. He explained that doing this “would move the court closer to the people by ensuring that every president would have the opportunity to replace two justices per term, and that no court would stretch its ideology over multiple generations.”
In an op-ed in The New York Times this week, Steven Calabresi, a law professor at Northwestern University who has a libertarian/conservative bent, also argued in favor of term limits: “Strategic retirements give the justices too much power in picking their successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law.”
If there’s any good to be had from the turbulence America is enduring right now, it could be that it will generate needed reforms on many fronts. One of these should be the structure of the Supreme Court and how we choose justices.