The State of the Supreme Court

by The Cowl Editor on October 7, 2021


The State of the Supreme Court

Should We Reconsider the Way We Structure the Court?

by Gabriel Capella ’25

   The idea of putting term limits to Supreme Court Justices has long generated debate in American politics, with liberals being the ones pushing for such change. This has been the case especially since the death of the late Supreme Court Justice Ruth Bader Ginsburg in September of 2020. This event opened the door for another conservative appointment to the Supreme Court as Republicans controlled both the White House and the Senate at the time of her passing; President Trump was able to nominate Judge Amy Coney Barrett to fill the vacancy.

    The nomination of Amy Coney Barrett to replace Justice Ginsburg in the Supreme Court was arguably one of the most opposed replacements in American history given its proximity to a presidential election. Liberals argued that since the process of electing a new president had already begun, the people had the right to choose what president would make an appointment to fill the vacancy. Essentially, they wanted to wait for the results of the election hoping for a Democratic win, which would mean a liberal appointment to the SCOTUS.

   On the other hand, conservatives knew they had to take advantage of this opportunity: confirming a conservative Justice would give them a 6-3 majority in the Court. If they achieved this, their strong majority would have the potential to last for decades. So, they acted quickly, very quickly: President Trump appointed Judge Barrett to the Supreme Court, and in a matter of weeks she was confirmed by the Republican-controlled Senate.

   This stable conservative majority in the Supreme Court has mobilized Democrats to make a push for a fundamental change: they propose either putting term limits to Justices or expanding the bench of the Court (number of Justices). This proposal is something they want to achieve while Joe Biden is President and Chuck Schumer is Senate Majority Leader, as it would open the door for liberal appointments/confirmations to the Supreme Court.

   However, putting term limits to Supreme Court Justices would mean fundamentally changing the Court, which is extremely difficult to achieve. When the Founding Fathers were writing the Constitution, under Article III, Section 1, they included: “The judicial power of the United States, shall be vested in one Supreme Court…The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” These last two words, “good behavior,” have long been interpreted by scholars as meaning a lifetime tenure for Supreme Court Justices. If the Constitution, being the highest law of the land, says that Supreme Court Justices shall serve for life, how do Democrats plan to change this and put term limits to Justices? The only legal work-around is a Constitutional Amendment (addition or alteration to the Constitution), which, in order to be ratified, would need the approval of 2/3 of each house of Congress and ¾ of the states.

   The likelihood of this happening is extremely low, as every single Republican in Congress will likely oppose such an Amendment and less than ¾ of states will approve of it. However, there is a second option for Democrats: expanding the number of Supreme Court Justices. This option would be slightly less difficult than the first one for Democrats to accomplish. Legal scholars have almost reached consensus on the constitutionality of Congress increasing or decreasing the number of Justices. However, in order to do this, both the House and the Senate need to pass the legislation. Given the Senate’s Filibuster rules, a bill expanding the Supreme Court bench would have no chance of passing.

   This debate, if analyzed from the most nonpartisan angle possible, is absurd. However, the Supreme Court holds an immense amount of power over the laws of the United States: it often decides whether something is constitutional. Historically, the Court has made crucial decisions that have impacted social issues, the economy, and even the result of a presidential election. This has led politicians to politicize the Supreme Court, which, in the eyes of the Founding Fathers, was supposed to be the body of government free from political intervention. Unfortunately for liberals, the SCOTUS will retain a strong conservative majority until one of the conservative Justices retires or passes away.