As delineated in the US Constitution, SCOTUS (the Supreme Court of the United States) receives the least attention. Its role is listed last — after the legislative branch/Congress (Article 1) and the executive branch/the President (Article 2). In addition, Article 3 is the shortest Article giving the judicial branch the smallest role which is to try cases and hear appeals. The Supreme Court as defined was to be the final appeal for court decisions. The first change to this role came when the second Chief Justice, John Marshall, gave his court the power of judicial review. Over the years, SCOTUS has garnered increased power over the government. Today, the Court is expanding its authority by making decisions that minimize the policies of government agencies like the EPA and FDA, even taking on climate change policy, and the only remedy for an unpopular decision from SCOTUS is through Congress by passing a new law. In addition, it is the sole branch of government that does not have to account to the population as federal judges/justices are appointed for life and never face an election. Many feel the process for nominating and approving justices has become too partisan (remember President Obama’s nomination of Merrick Garland in March of 2016, a full ten months before he was to leave office, refused by Majority Leader McConnell, then Amy Coney Barrett’s nomination just two weeks before the following election fast tracked to approval). It is time for court reform.
The Brennan Center for Justice devised a practical solution to the problem. While federal judges and justices would continue to be appointed for life as the Constitution stipulates, justices’ terms on the Supreme Court would end after eighteen years. After their eighteen years sitting on the Court, justices would then become emeritus justices and move on to fill positions as needed on the lower courts until such time as they might choose to retire. The writers proposed eighteen years because each President would then have the power to nominate two justices in his/her term — a far fairer system than exists now. A bill is before Congress now to incorporate such a law. HR 5140, the House bill was proposed in 2021, and several leading Senators have proposed the same bill in the Senate. It is past time for action on this important legislation.