Improving the Supreme Court

In the search to replace Justice Stevens, an opportunity for deeper reflection on one of the United States' integral institutions

The search for Justice Stevens's replacement on the Supreme Court has sparked plenty of speculation about possible picks. It has also, however, led to deeper reflection on the nature of the Supreme Court in general and the ferocity of confirmation battles. What are the weaknesses of the institution, and how could it be made better? Here are some of the ideas on offer:

• Anonymous Opinions  "Why do other countries not suffer from the same toxic confirmation battles that we do?" wonders Linda Greenhouse for The New York Times. "Americans are justifiably proud" of the example they've set in government, but maybe following other countries' lead on courts could be beneficial. Requiring a supermajority for confirmation can lead to more moderate court picks (Greenhouse cites the case of Germany), but perhaps an even better idea would be not publishing dissenting opinions--just having a single opinion speak for the court. Two law professors from George Mason recently argued, Greenhouse notes, that making all opinions anonymous "should cure the Supreme Court of its 'cult of celebrity'" and lead justices to "'behave more like traditional judges and less like publicity-hungry politicians.'"

• Term Limits  The Washington Post's Ruth Marcus, as the Wire covered Friday, doesn't like the pressure being put on Obama to nominate someone young enough to be able to "serve for decades." Instituting term limits, which might even be possible without a constitutional amendment, would free presidents up to nominate the best men and women for the job--who may well be older.

• Appoint Older Justices  The presidential focus on age is probably misguided even as is, argues Montgomery Kosma, also in the Post. "A justice's age at the time of appointment bears virtually no relationship to his or her total career influence," it turns out. The conclusion:

A president should prefer an older nominee's more concentrated influence for two reasons. First, that influence will be felt more quickly, having a more significant impact on legal debates during or shortly after the president's own term of office. Second, the direction of that influence may be more predictable. An older candidate may have more established views, whereas a younger nominee has more time for his or her views to evolve.

• Appoint Someone Not from the Ivy League  The New York Times' Timothy Egan is one of several to notice that, with the retirement of Justice Stevens, the bench will not have a single member who did not attend either Harvard or Yale law school. "I’m not sure just how much attention the rights of an average citizen get in legal seminars at Harvard and Yale," writes Egan, "but judging by the majority voting block on the current court, very little. This court, activist conservative in the extreme, has never met a corporation it has not coddled, nor a prosecution argument that does not have superior merit."

• Don't Be Anti-Meritocracy in a Rush to Avoid Elitism  Newsweek's Andrew Romano defends the elite schools, arguing that though Justice Sotomayor attended Princeton and Yale, "she was also raised by a single mother in a drug- and crime-ridden Bronx housing project," and that probably affected her at least as much as her education did.
  

Going to an Ivy League law school shouldn't necessarily be a plus. But it also shouldn't be a minus. The fact is, Ivy League admission usually--not always, but usually--reflects what you've accomplished rather than who you are ... It's not a total meritocracy ... But if all Yalies were such out-of-touch elitists, why would 80 percent of them be on financial aid (compared to 50 percent at Stevens's alma mater, Northwestern)?

• Ditch the Liberal/Conservative Stereotypes  "For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law," writes law professor Geoffrey Stone in The New York Times. That's nonsense: conservative judges have made some of the boldest decisions, including granting corporations an individual's right to free speech. Likewise, "liberals love to perpetuate the stereotype that 'liberal' judges rule in favor of minorities, the poor, and the little guy ... while 'conservative' judges rule in favor of evil corporations, police departments, and white males," writes John Shu at Big Government. But these, too, are "inaccurate stereotypes": liberal Stevens once "rejected a female flight attendant's Title VII gender-discrimination claim because she did not sue within the statute of limitations," and conservative judges have often been some of the most vigorous opponents of racial discrimination, argues Shu.