Policy Today magazine cover showing American founders meeting
September 8, 2006

John Roberts' confirmation hearings give the Senate an opportunity to examine the structural forces that have reshaped the Supreme Court over the past 50 years. Chief Justice Rehnquist's passing and Judge Roberts' nomination to take his place make that enquiry even timelier.

The Judiciary, in particular the Supreme Court, transcends multiple principles underlying American democracy: As well as deciding legal cases and controversies, the Court functions politically as one of the three branches of government.

While the hearings and witnesses will focus on Judge Roberts's past memos, opinions, and political views, much more is at stake.

5-4 and the rule of law

The Court's recent struggle with stare decisis, guiding lower courts with well-reasoned and compelling precedent, is troubling. "The Supreme Court isn't final because it's always right, it's right because it's always final," notes Charles Weisselberg, of UC-Berkeley's Boalt School of Law.  While the percentage of 5-4 rulings over the past ten years has remained constant at about 20 percent, this is close to double the Warren Court's "one-run" decisions. 

Equally telling are the sheer number of opinions that the Rehnquist Court has produced.  The Harvard Law Review tallied 823 rulings between 1993-2003, and counted 1,904 total opinions of which 1,446 were dissenting opinions.  "This court is extremely fond of writing separately," says Professor Goodwin Liu, a former law clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg.  "There's a sense of personal independence on the court, which may have to do with their backgrounds in academia and on lower courts."

Questions about the institutional nature of the Supreme Court emerge with deeper analysis of split decisions on major cases.  "Often, 5-4 decisions reflect a court divided in the way that American society is," explains law professor Erwin Chemerinsky of Duke University.  "It's the nature of a human institution, and it has been pretty constant throughout history that about a quarter of the court's decisions come down 5-4."  Split decisions also indicate a fundamental tenant of the Court's job, to decide the most difficult cases after other tribunals have failed.  It is also worth noting that not all 5-4 decisions are created equal.  "Depending on how they are written, 5-4 decisions generally show how contentious the issue is and how strong the case is on each side," says Liu.

"The very fact that there are 5-4 decisions on constitutional cases proves that these judgments are ultimately political decisions," observes Boalt Hall Professor Martin M. Shapiro. "Whenever the court interprets the law, it is also making the law."

Although resolutely independent justices have the positive effect of examining and explicating diverse viewpoints, the impact of their decisions is real world.  Common law is case law.  And for those who look to the Court for legal direction through legal precedent, if the cases aren't clear, then neither is the law.  Because time spent in court translates to time not minding the store, and with lawyers fees rocketing into the stratosphere, the worry is more than academic.

Politics and principles

In landmark cases such as Brown v. Board of Education, Miranda, and Roe v. Wade, the Court made political decisions that it was structurally ill designed to make.  In other words, Congress can call witnesses and draw on multiple viewpoints, whereas the Court is confined to the arguments made by the parties before it.

"The question right now is whether the court will continue to be a pragmatic court that doesn't depart too far from the general public, or will it swing in favor of a more philosophical, purist view of the law," says Liu.

"I would say that the pattern that has been established of only appointing people who have served on lower courts is not necessarily a good thing," says Professor Jesse Choper, a former clerk for Chief Justice Earl Warren.

While critics complain about the Court's politicization, others point to the lack of direct political experience. Compared to the Warren court, which was packed with politically experienced justices, the court has become less political even as its nominees are relentlessly politicized.  This lack of political experience shows, according to some law professors. "There's a humility that comes from running for office," notes Chemerinsky. Justice William Brennan Jr., goes further in his analysis of the concept.  "I think the court badly shows its lack of direct political experience," he says. "I think that having a seasoned politician or two on the court helps considerably in terms of know-how and credibility.  It gives the court a sense of what the public is ready for in terms of how far it can go."

Supreme for life: term limits and mandatory retirement age

Finally, there's the related and nagging question of how nine elderly jurists--some of whom were appointed decades ago, can accurately respond to the changing face of American society.

Increasing life spans and a reluctance to leave the bench have undoubtedly reduced the power of the electorate to influence the Court through the appointment process, but some scholars argue about whether this actually matters.  For those to whom it does, remedies offered include term limits and a mandatory retirement age.

"The fact that we haven't had a vacancy for 11 years raises some questions of whether more frequent turnover would be desirable," says Christopher H. Schroeder, professor of law and public policy studies at Duke University. "Lifetime appointments may have been reasonable back in 1889," says Barnett, "but it seems excessive now with people's increased life spans."

Counter arguments are just as strong, however.  "Age does not make that much of a difference when it comes to interpreting the law," explains Shapiro.  "Judges in general and Supreme Court justices in particular are the recipients of a constant stream of information about every subject they may encounter."  "If it ain't broke, don't fix it," says Chemerinsky.  "I appeared before the court twice last year and there was nothing to indicate that Justice Stevens, at 85 years old, was incapable of doing the job he was appointed to do."

A mandatory retirement age may not be the answer to contemporizing the court, but term limits might.  "Term limits would take some of the lightning rod effect out of the nomination process," says Schroeder.  They could also inject a new type of dynamism into the institution, regardless of ideology and perspective.  "I think term limits would change things dramatically," speculates Weisselberg.  "You would have many more opportunities to appoint justices, which would result in less stability on the court.  Whether regular turnover would be positive or not, I'm not sure."

All of these structural issues—a Court that goes to bat for a Congress that won't step up to the plate "one-run" decisions supported by multiple, competing opinions and lifetime appointments—may well be inconsequential. Yet, surely these broader themes deserve as much consideration as the long-forgotten files of an eminent nominee.