The Supreme Court: An Institution for the 21st Century?

US Supreme Court

The death of Supreme Court Justice Ruth Bader Ginsberg has set off a political battle that could tear apart the already severely frayed fabric of American political and social life.  Supposedly insulated from political influence by lifetime tenure, Judicial appointments have become political prizes, giving rise to partisan battles that are increasingly leaving long-lasting scars on our democracy and the legitimacy of our legal system.

It is easy to understand why appointments to the United States Supreme Court have become such a hot-button political topic.  The Court consists of 9 justices, who serve for life.  Short of a Constitutional Amendment, Supreme Court decisions are the final word on Constitutional interpretation and are the law of the land. 

the Supreme Court is the most exclusive and powerful club in American society

The makeup of the Court is worth examination. At the present time, all the members are graduates of either Harvard or Yale Law Schools. None of the other 202 American law schools has a graduate on the Court.  Two of the Justices, Kavanaugh and Gorsuch, both attended the same private preparatory school.  All the current justices were raised either Catholic or Jewish (Justice Gorsuch was raised Catholic, but now identifies as Episcopalian).   In the history of the Court, only four women, and two African Americans, have been appointed.  With the death of Justice Ginsberg, there are two women remaining.  Justice Thomas, the only African American, is also its longest-serving Justice at 29 years. Justice Sotomayor is the first Hispanic member.  Of the 4 women who have served on the Court, 2 were appointed by President Obama and have both served approximately 10 years.  As Justice Scalia once recognized, the Court does not well reflect the diverse demographics of the nation it serves.  There are no evangelical Christians. Most are from the East or West Coast.  All went to private schools or elite public schools.  There has never been a Mormon, Muslim, or openly homosexual member.   It is not an exaggeration to say that the Supreme Court is the most exclusive and powerful club in American society.

Supreme Court Appointments Have Become Political Side-shows

American Supreme Court Justices have historically served an average of approximately 17 years.  The longest tenure of a Justice on the Supreme Court was William O. Douglas who served just short of 37 years from April 1939 through November 1975. The shortest was Thomas Johnson who served only 163 days, from August 1792 through January 1793.  Ruth Bader Ginsberg was the longest serving female at approximately 27 years on the Court.

Most nations in the developed world do not seem to have the political struggle over their Courts that we see in the United States.  In an effort to see what they’re doing differently, and to try and understand why judicial appointments are such a high stakes game in the United States, I thought it would be interesting to examine other developed nations and compare how those nations select the Judges to sit on their highest Courts and the length of time those Judges serve.  What I found when looking at the data, is that our Court is unique in its small size and the lifetime appointment of justices. 

Highest Courts of the World

NationNumber of JusticesTermHow appointedPopulationJustices per capitaRule of Law Ranking
United States Supreme Court9LifePresident, confirmed by the Senate328,200,0001 per 36,466,66621
Constitutional Court South Africa1212 years or age 70President choses from a list from the Justice Service Commission57,780,0001 per 4,815,00045
New Zealand Supreme Court6Mandatory retirement at age 70Selected from the Court of Appeals4,886,0001 per 814,3337
Supreme Court of Canada9Mandatory retirement at age 75Appointed by the Governor in General Counsel37,590,0001 per 4,176,6679
Supreme Court of the United Kingdom12Mandatory retirement at 70Appointed by the House of Lords66,650,0001 per 5,554,16613
Federal Constitutional Court – Germany1212 years, mandatory retirement at 68Selected by the legislature upon a 2/3 vote83,020,0001 per 6,918,3336
Court of Cassation (France)1229 year non-renewable termappointed by the president of the republic from nominations from the High Council of the Judiciary66,990,0001 per 549,09820
Supreme Court of Justice of the Nation (Mexico)1115 yearsRatified by the Senate from a list proposed by the President126,200,0001 per 11,472,727104
Supreme Court of Israel15Mandatory retirement at age 70Appointed by the President from a list of names provided by the Judicial Selection Bureau9,254,0001 per 616,933
Supreme Court of Iceland7Life tenureQualifications Committee recommends names to the President364,1341 per 52,019
Supreme Court of Denmark18Mandatory Retirement at 70Appointed by the Minister of Justice upon the recommendation of the Independent Board of Judges5,806,0001 per 322,5551
Supreme Court of Norway20Mandatory Retirement at 70Appointed by the King5,432,5801 per 271,6292
Supreme Court of FinlandAt least 15 (Currently 18)Mandatory Retirement at 68Appointed by the President5,528,7371 per 307,1523

As you can see from the data, the United States Supreme Court has both numerically and proportionately, far fewer Judges on our highest Court than most other nations in the developed world that I looked examined. 

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list.

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list. Indeed, the closest to the United States is Mexico, with 1 justice per 11.5 million people, but that still gives a Mexico 3 times as many justices relative to the size of its population to the United States.  The remaining nations have an average of one justice per 2.4 million people.  Clearly, given the size of the population it serves, the United States Supreme Court is extremely small when compared to all other nations.  This small number of Justices tremendously increases the value and influence of each appointment. 

Supreme Court in Denmark – The Nation Ranked Highest on the Rule of Law Index

Looking at American History, there is also evidence that the ratio of Justices per population has greatly increased over time. The Court began with six justices who served a population of 3,929,214.  This produced a ratio of 1 Justice per 654,869 people.  Since 1869, the Court has consisted of nine justices.  The 1870 census counted a population of 38,558,371 people.  This produced a ratio 1 Justice per 4,284,263 people, which is similar to what we see today in nations such as Canada and the United Kingdom. 

The other relatively unique characteristic of the U.S. Supreme Court, and all Federal Judges in the U.S. system, is lifetime appointment.  Only one other nation that utilizes lifetime appointments is Iceland.  However, Iceland, with a small population of 325,000 people, also has the best ratio of justices to the population with 1 justice per 52,019 people.  Apart from Iceland and the U.S., all other nations have some form of term limits or mandatory retirement age for justices.  Fixed terms, either by age limits or tenure limitations, remove the uncertainty in how long a particular Justice will serve.  The anxiety that exists in American society and politics today that a Judicial appointment is a decision so fixed in stone that one may not live long enough to see change is a driving force in the politicization of Supreme Court appointments. I believe it is also driving the trend to appoint younger, less experienced, judges who are chosen based upon membership in organizations such as the Federalist Society, rather than demonstrated experience.  Our current system allows Justices to remain on the bench far beyond typical retirement age such as in the case of Justice Ginsberg whose death at the age of 87 ended her tenure. 

The Supreme Court is the Last Word on the Constitution

The small size of the Court, along with the potentially long tenure of the Judges, makes each appointment an opportunity to wield influence and leave a legacy that can last decades into the future.  This gives Presidents enormous power in their appointments because as few as two justices can significantly alter the dominant philosophical nature of the Court. 

…we are now classified as a nation where the Rule of Law is declining

The next issue I examined is what impact does a small court with life-long judicial tenure have upon the quality of justice in the United. To look at how the U.S. legal system is faring I examined the “Rule of Law” index complied by World Justice Project, a respected non-partisan organization that collects and ranks data related to the health of the rule of law in nations around the world . According to the Rule of Law index, the United States is ranked 21st out of 128 nations worldwide.  This is a respectable score that puts the United States well above the worldwide average.  What did concern me, and should concern all Americans, is the changes happening in American law which have resulted in the United States in a declining score such that we are now classified as a nation where the Rule of Law is declining. 

What does this mean for our Democracy? Are we truly imperiled?  Looking at the data we see that, at 221 years, the United States is the world’s oldest democracy.  Although many countries are older than the United States, which is a relatively young nation, we have the oldest constitution in the world.  Looking at the Democracy index published by the Economist Intelligence Unit, the United States is ranked 25 out of 167 countries and is classified as a “flawed democracy”.

What is interesting is the correlation between nations which score highly on the Rule of law index and those who score highly on the Democracy Index.  The top three nations on the Rule of Law index were #1 Denmark, #2Norway, and #3 Finland.  On the Democracy Index, Norway took top place, Finland was fifth, and Denmark was seventh.  Looking at the data, it does appear that a healthy rule of law and a healthy democracy exist together. 

In discussing the Court, I would be remiss to ignore the fact that the Court has only the power of its own judgment. There are no juries at the U.S. Supreme Court because it decides only issues of law and makes no factual determinations such as guilt or innocence. In many ways it is the most undemocratic branch of our democracy because its decisions are not up for review by the voters and its members cannot be removed at the ballot box.  It has no police force, no army, no secret service to enforce its decisions and enforce its rulings. The Court has only our willingness to be ruled by its decisions.  Therefore, the perceived legitimacy of the Court is foundational to the rule of law and health of our democracy. 

There are calls in the American by press to expand the Court to counterbalance “conservative” court packing and denial of democratic appointments by Senator Mitch McConnell.  The public perception that the Court is being stacked threatens to greatly diminish, if not destroy, the perceived legitimacy of the Court by many Americans for a generation.

 Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases. 

I believe that the Court should be expanded, but for different reasons. As the data shows, we have far too few Justices for the size of the U.S. population.  Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases.  Comparing this number to 1880 when the Court received only about 500 cases filings per year (I haven’t been able to determine how many cases were decided in 1880), but was the same size it was today, it obvious that the demands on the Court have grown exponentially while the Court’s size has remained fixed since the 19th century.

The US Supreme Court Has Remained the Same Size Since the Era of the Steam Engine.

The time has come to modernize this institution.  We should not allow our democracy and legal system to strangle itself on tradition and partisan wars. The U.S. Supreme Court needs to be expanded.  Healthy democracies with a strong rule of law have approximately one justice per 5 million people.  To reach half that number, we would need to expand the U.S. Supreme Court to 33 Justices.  Ideally, we should have more than 60 Supreme Court Justices, but I hesitate to even dream of such a large court.  I do not envision that all these justices would hear all cases, but that there would be rotating panels of odd numbers of justices sitting on the bench, allowing a greater number of cases to be heard and decided.  This would parallel what is already being done in both State and Federal Appellate Courts throughout the United States. 

Expanding the size of the court would not only improve access to the Court, but it would also reduce the value of each individual appointment and temper the political implications of those appointments.  There would be an increased rotation of Justices joining and leaving the Court, such that any President would be making several appointments during their term and Senate Confirmations would become a more routine event.  

Regarding age-limits, I do not personally favor such limits because we are living longer healthier lives and I have seen many individuals who can function well in a courtroom despite very advanced age. However, I do believe that there should be safeguards for poor health and incapacity.  

Lifetime appointments are a characteristic of monarchies, not of democracies.

I can see value in tenure limits such that Judges are limited in their time on the Court.  The Supreme Court itself should be the institution, not the individual justices.  The legitimacy of the Court should never rise and fall on any individual justice.  Lifetime appointments are a characteristic of monarchies, not of democracies.  However, to implement this change, the U.S. Constitution would need to be amended, which is probably unlikely at this time.

We can choose progress or stagnation

Beyond an increase in the judicial payroll, there would be a cost to the changes I am proposing. That cost would a loss of intimacy. With only nine members, the Supreme Court is our most intimate institution.  Its members sustain over long periods of time. Some, such as Ruth Bader Ginsberg, achieve rock star like status is American popular culture.  For Court watchers like me, it is like watching a sports team where you know the player’s and the outcome of each game is carefully studied. I expect a larger court, rendering more decisions, would be more challenging to follow.

In closing, change is inevitable in governments and the law.  Our Supreme Court has remained relatively unchanged for more than 150 years.  It is time for us to reexamine our highest court and the needs of a 21st century nation.  We need to take heed of those who measure us to be a “flawed democracy” and the decline in our rule of law.  I believe we are at an inflection point in American history and the road we chose will determine whether we restore ourselves as an example of a healthy democracy with a strong rule of law, or as a nation that became so mired its own traditions that it failed to change with the times and lost itself in the process.       

United States Supreme Court – A Court Diminished

David Abrams in front of the US Supreme Court
David Abrams in front of the US Supreme Court

The United States Supreme Court, once the most prestigious court in the world, has been reduced to a politically gerrymandered court by the Republican Senators’ refusal to even review President Obama’s nominee and Donald Trump’s pledge to pack the Court with political ideologues, guaranteeing rulings he sees as politically beneficial. Trump will have little difficulty keeping his promise given the Republican majority in the Senate.  I do not expect the Court will recover from this harm within the remainder of my legal career or lifetime.

The framers of the Constitution envisioned a Court that would be as insulted as possible from the political process. The first and most famous case ever decided by the Court, Marbury vs. Madison, was rooted in the idea that the Court is immune from political restructuring. The Court rejected an expansion of its jurisdiction by Congress through the political process and held that jurisdiction of the United States Supreme Court is established by the Constitution.  The Court’s authority, like the Court itself, is beyond the political process.  Judges do not serve at the pleasure of the President or Congress; they have lifetime appointments.  This principle of law has been incredibly important in American jurisprudence.  Neither Congress nor the President can remove or expand the Court’s jurisdiction in response to the political winds of the time, nor can they retaliate against a Judge or the Court for rendering a politically unfavorable decision.

The role of the Court in protecting the freedoms of and ensuring justice for the American people cannot understated.  Removing bigotry, prejudice, and injustice from American law has rarely been achievable through the ballot.  Desegregation, repeal of miscegenation laws, removal of literacy tests for voting, privacy rights, the right of counsel for people accused of crimes, the right to be free from unlawful search and seizure, the right of married couples to use birth control, and the right for same sex marriage were all achieved at the Supreme Court and would have all failed if put to a vote.  Strict textualists, such as former Justice Scalia and those whom I expect Trump will nominate, insist that rights which are not explicitly stated in the Constitution do not exist.  They disagree with the perspective of Justice Douglas who wrote that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” Griswold v. Connecticut, 381 U.S. 479, 484 (June 7, 1965). In simpler language, there are rights that are not explicitly stated, but are implied in the text, such as the right for a parent to raise and educate a child, including sending a child to a religious school rather than a public secular school.

American flag, US constitution and a judge's gavel symbolizing the American justice system or the Judicial Branch of government ( Judiciary )That the Constitution and the Supreme Court allow rights to develop in response to our collective experience rather than through the nearly impossible political process of Constitutional amendment is one of the great strengths in our legal system and has allowed our nation to remain a leader in human rights. As Alan Dershowitz postulates in his book “Rights from Wrongs: A Secular Theory of the Origins of Rights”, human rights do not come from G-d, or nature, or even from logic.  Instead, they come “from human experience, particularly experience with injustice.  We learn from the mistakes of history that a rights-based system and certain fundamental rights…are essential to avoid repetition of the grievous injustices of the past.”  In other words, rights come from wrongs and are recognition of those wrongs. A great example of this is found in the Constitution itself where the framers included a right contained in the Third Amendment prohibiting the government from forcing people to quarter troops in their homes during peacetime.  This is not a right most of us would consider putting into the Constitution if we were writing it today.  Indeed, there has never been a Third Amendment case brought to the Supreme Court.  This Amendment exists as a relic of the experience of the framers and their fears based upon that experience.

Sadly, I greatly fear that the era of the Court standing between the people and the government as a neutral arbiter of the rights secured by the Constitution is over.  For the first time in our history we may see the United States Supreme Court moving in reverse where, rather than finding emerging rights, the Court will remove existing rights from the people.  More importantly perhaps, I fear that, due to the political games that have been played by the Republicans in the appointment process, the United States Supreme Court has lost the moral authority and diversity of thought it once possessed.  The Constitutional vision has been undermined and unfortunately the Court, and likely the American people, will suffer.