America needs federal commission on Supreme Court of modern times
No one likes federal studies. They tend to sit new and unopened on some shelf in a bureaucracy and gather dust. Often as useful as door stoppers, they are regarded as cop outs that reach hundreds of pages.
But with the heat of partisan battle over the confirmation of Amy Coney Barrett, the smartest and most responsible action would be to create a federal commission on the modernization of the Supreme Court. In fact, there will never be a better time to do it than now, when the fires of the campaign flicker at an institution of government that needs to be truly independent and removed from all passions of the moment.
I understand those who believe that Joe Biden should support packing the federal courts. Donald Trump, Mitch McConnell, and the Republicans have effectively packed the federal courts by stalling or stonewalling nearly one hundred nominees of Barack Obama. Their attitude on the issue, stripped of slick varnish, is that they are doing it because they can.
Forbearance, a critical element in sustaining a democracy according to the writers Steven Levitsky and Daniel Ziblatt in the excellent book “How Democracies Die,” is the stuff of chumps to Republicans in power. They believe respecting norms and customs for our democracy by not doing one thing, even though you can, demonstrates weakness.
But in politics, every action triggers a reaction. At best, an injustice must be corrected. Sometimes it becomes a matter of payback. The problem with retribution in politics is how simply it escalates. In a country of red flags and blue flags, who will raise the white flag? Scores could become settled, but the loser is the concept of rational discourse.
We know that Democrats, if they win it all in two weeks, could decide to increase the number of Supreme Court justices to restore the balance of ideology. But who doubts that Republicans would not do the same if and when they return to the White House and the majorities in Congress. The number of Supreme Court justices changed six times before settling with the nine seats in the 19th century. In our volatile environment, it is entirely possible it could change six more times in the 21st century.
What does it say about this institution for a population that has risen from 30 million when the Supreme Court first came to nine seats to 330 million today? Does it make sense, as a Republican friend told me, that someone born this year will have the potential to grow up under the Supreme Court locked down by this administration until after high school?
There are proposals to restructure the judiciary. The Brookings Institution considered the ideas of adding seats or mandating term limits on justices. Some have suggested age limits or a structure of a larger bench of lower federal appellate court judges who would hear the cases in the Supreme Court for a specific term and then return to their benches.
The Supreme Court is vital to the future of democracy. Its select members cannot be decided based on the passions of the moment. Remember that the judicial branch itself was created to ensure an insulation from policies forged in the heat of battle. That is why we need this federal commission that conducts a deep dive into how the Supreme Court established in the 18th century can now function wisely in the 21st century.
The federal commission can make recommendations on how the Supreme Court can be protected from the impulses of the parties, and how we can ensure that its power is balanced and discontinuous. There is no shortage of scholars and experts in both parties who can be called on to serve and advise the panel. The recommendations would be presented to Congress and used as a basis for legislation action to enact change.
I want a Supreme Court that thrives in the future based on true diversity and democracy. The best way to achieve that is to review and reform the revered institution outside the realm of partisan politics and the calendar of a campaign. The Supreme Court does not deserve a circus. It needs a serious commission to ensure it can stand the test of time.
Steve Israel represented New York in the House over eight terms and was chairman with the Democratic Congressional Campaign Committee from 2011 to 2015. He is now the director of the Institute of Politics and Global Affairs at Cornell University. You can follow his updates @RepSteveIsrael.
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