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The content on this blog is my personal opinion and does not reflect the views of the Department of Defense or the US Navy in any way.


Monday, September 24, 2018

The Future of the Supreme Court

I largely agree with the idea in this editorial that the Supreme Court is headed for trouble. The increasing partisanship of its members is already damaging its credibility and respect. If that were the only consequence, it would be depressing but not too horrible; people not liking the court or its decisions wouldn't change how their powers are defined or make it possible to defy their decisions without consequences. However, as the court becomes increasingly partisan, I worry that we'll see more people selected for it and more people seeking nominations for partisan reasons rather than because they'll make good decisions about what the law means.

The solutions the editorial proposes, though, don't seem much like good solutions to me. If anything, they seem to argue that we can't fix the problem.

Term limits for the Supreme Court, in particular, isn't a minor change for an institution that was originally designed to have some independence from the electorate's whims. Doing that certainly would limit some of the negative consequences of increased partisanship, but it'd also increase the focus on partisanship when selecting nominees. Given that the problem we've identified is too much focus on partisanship, that seems like a rather contradictory solution at best - then again, if we can't actually reduce partisanship, we may have to do something like this eventually.

And adding more judges is just a temporary patch on the problem, and that only in the unlikely event that it works correctly. If we used it to add some moderates with good judgment, then we could potentially rely on those people to be the swing votes whether or not their partisan colleagues were led astray by bias or not. But adding such people isn't a guarantee; in fact, given that the problem is that the process for selecting justices is being increasingly warped by partisan concerns, it's more likely than not that we wouldn't get people who could help. And even if we did, any balance we'd get would only last as long as it took for a future president to backslide again.

The third solution the article suggests - that existing justices will moderate their views as necessary to ensure the court doesn't end up becoming too partisan - is probably the best idea from my point of view. The problem, of course, is that the same independence which allows them to do that without facing the wrath of the electorate also makes it impossible to force them to do it.

In the long run, I think we need to do a better job of selecting people to nominate - more useful confirmation hearings, for example. Probably, for that matter, we need to look at what makes conservative and liberal judges different at all levels, not just the Supreme Court. Of course, coming to an agreement on which we ultimately want more of is probably not going to happen any time soon.

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