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Ideological Imbalance On US Supreme Court

In Article 3 of the U.S. Constitution, it’s stated that Supreme Court justices “shall hold their appointment during good behavior” - which is generally interpreted as a lifetime appointment. One of the unintended consequences of this interpretation is that it gives Supreme Court justices significant power in choosing the party that will appoint his or her successor. And Republican justices have fully exploited this flawed succession process.

Justice Potter Stewart, who was appointed by Republican President Dwight Eisenhower, held out until July 1981 so his successor could be named by President Reagan rather than President Carter. Sandra Day O’Connor even admitted that she waited to resign until 2006 so her replacement would be appointed by a Republican President.

As a result, in the last 50 years, Republican Presidents have selected 15 Supreme Court justices while Democratic Presidents have selected 4.

With the recent announcement that Justice Anthony Kennedy will resign this month, it’s no surprise that his would-be successor is a partisan Republican appointment - especially now that the nominee no longer needs 60 votes in the Senate to be confirmed.

At the same time, America’s confidence in the Supreme Court has plummeted from a high of 77% in the 1990s to 37% today. And many predict that the current succession process will further undermine our confidence in the integrity and impartiality of this vital institution.

In civics classes, we learned that part of the bedrock of our democracy is a system of checks and balances. But a Supreme Court lacking balance would likely serve only as a check on Democrats and Democratic policies – clearly an unfair system.
As a corrective measure, perhaps we should limit the term of Supreme Court justices to 18 years and stagger their terms so that a new justice gets appointed every two years. But if this couldn’t be done without amending the U.S. Constitution, there are some alternatives.

For one thing, the constitution doesn’t stipulate the number of justices, and during our history, the legal size of the court has changed six times - ranging from six members to 11 members.

Adding members to the Supreme Court might be less desirable than having rotating terms, but whatever the fix, it seems clear that we need a succession plan that better reflects the will of the people and isn’t so easy to manipulate.

Update 7/11/2018: This text has been changed to correct the name of Justice Potter Stewart.

John Vogel is a retired professor from the Tuck School of Business. His tenure at Dartmouth began in 1992, where he taught Real Estate and Entrepreneurship in the Social Sector, among other subjects. He was named by the “Business Week Guide” to Business Schools as one of Tuck’s “Outstanding Faculty” members.
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