BIDEN HIS TIME?
divergence of opinion and novel expansive role. When judges act as super‐legislators, the media and the public want to scrutinize their ideology. That’s why people are concerned about the views of judicial nominees and why there are more protests outside the Supreme Court than Congress. Only when we fix that dynamic – when the Court returns power back to the states and the people and forces Congress to legislate on the remaining truly national issues – will we stop debating whether and when justices should retire. But in the meantime, we have a new presidential commission to tinker around the edges. Even before his inauguration, Biden faced calls to “rebalance” the Supreme Court, with Democratic elites questioning the legitimacy of all six Republican‐appointed justices for various reasons. However, the new president was one of the few candidates against court‐packing during the primaries – Bernie Sanders was another – recognizing that adding seats for political reasons would just lead to Republicans doing the same at their next opportunity. But then Biden stayed coy on the issue during the general, not wanting to alienate either activists or swing voters. Saying that the judiciary was “out of whack,” he ultimately proposed a commission to study possible reforms. That August body was announced in April and in May, it held its first public meeting which consisted of a recitation of its areas of focus: (1) the genesis of the reform debate, (2) the Court’s role in our constitutional system, including judicial review and jurisdictional scope, (3) the justices’ length of service and turnover, (4)
Modern confirmation battles are all a logical response to political incentives given judges’ divergence of opinion and novel expansive role. that comes Sonia Sotomayor (66), but she has only served 11 years and surely feels an obligation to hold up the Court’s left wing. There’s something unseemly here. Why do we care so much about when octogenarian lawyers decide to devote themselves to golf? Well, the decisions of our legal oracle matter – and those pronouncements increasingly turn on the party of the president who nominated the justice. Moreover, filling each Supreme Court vacancy is a bigger deal because justices now serve longer. In the early republic, when life expectancy was under 40, the average age of a nominee was about 50. Now, with life expectancy just under 80 – more than that for those privileged codgers already in late middle age – nominees’ average age is... about 50. To put it another way, before 1970, the average Supreme Court tenure was less than 15 years. Since then, it’s been more than 25. Justices appointed at or before age 50, like John Roberts, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett, are likely to serve 35 years. Justice Thomas, who was 43 when he joined the Court – and this fall will mark 30 years – could serve another decade! Modern confirmation battles are all a logical response to political incentives given judges’
82
June 2021
Made with FlippingBook - professional solution for displaying marketing and sales documents online