The U.S. Supreme Court today has far more impact on the lives of regular Americans than the Founders likely ever envisioned. That's why the cynical moves by Senate Republicans in recent years to politically manipulate the court have been so damaging to its legitimacy and to the nation. Given some of the stunts the GOP has pulled, President Joe Biden's new commission to study possible structural changes to the court is a legitimate way to consider the viability of expanding the court. The current size of nine seats isn't specified in the Constitution.
That said, objections of court-packing threaten to further discredit the court and risk an escalating game of expansion each time the Senate changes hands. A better idea, and one more likely to get bipartisan support, would be to limit justices to 18 years on the bench instead of lifetime appointments, which would take some of the heat out of these fraught confirmation battles.
So blatant and cynical has top Senate Republican Mitch McConnell been in carrying out his Supreme Court manipulation that it's easy to get numb to how devastating it's been to the court's standing. In 2016, McConnell, then the Senate majority leader, refused for almost a year to allow then-President Barack Obama to fill a vacancy, making up a new rule on the spot that "the people" should choose via their choice of president in the next election. McConnell ignored the fact that the people had already given Obama the job in that term. Once Donald Trump was in office (having lost the popular vote of "the people" by almost 3 million ballots), McConnell scuttled the filibuster for Supreme Court nominees to fill the pilfered seat.
Then, last year, when Justice Ruth Bader Ginsburg's death created an opening less than two months before the election, McConnell tossed his earlier standard out the window. Instead of letting the people decide, he rammed through confirmation of Trump appointee Amy Coney Barrett literally the week before an election in which the people rejected Trump by some 7 million votes. America now has a Supreme Court tilted far to the right of most Americans, with frightening ramifications for abortion rights, gun safety, health care, campaign reform and more.
McConnell's Machiavellian campaign to stack the court was driven by the inherently high stakes of lifetime appointments. Limiting future justices to 18 years, as many scholars have suggested, would give the court the stability of long-term membership but with the predictability of an end-point for each appointee.
It's a solution that, unlike court expansion, would benefit both parties without providing motivation for endless future structural changes. Each of the two parties would know in advance which seats they would be allowed to fill and when — rather than leaving the judicial health of the nation to the whims of the Grim Reaper.
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