Our Sclerotic Constitution

In need of bypass surgery

Photo by Cottonbro Studio on Pexels

Joe Biden is now a lame duck. I salute his decision not to run again. But I grieve one of its consequences: His proposals to reform the Supreme Court will be lost in the dust. 

Biden proposes term limits and an ethics code for the Justices, and most Americans agree with him. (He also wants to undercut the Court’s decision to make presidents immune from criminal prosecution. So do I, but that’s a different issue.)

Public agreement on term limits and an ethics code holds across the political spectrum, for about half of Republicans, 2/3 of independents, three fourths of Democrats.

I’m going to focus on the issue of term limits, pleased that public discussion is moving from individually flawed justices to the system they work within. I’ve urged that move before; in particular, I’ve bemoaned our sclerotic constitution.

Without that adjective, though. It comes to mind today because of a friend’s recent experience. His doctor had ordered cardiac tests, and within a few hours the patient portal displayed his results: among other problems, a “sclerotic aortic valve.” A web search suggested he had about two years to live . . . or, more hopefully, open heart surgery?

Not at all, said his doctor the next day. “The results are normal for your age.” My friend was relieved. But then he thought again. He’s in his 80s, and ‘normal for his age’ does not mean ‘in great shape.’ Not at all.

I’d say the same about our Constitution. The analogy is limited: My friend will live two or three, or 10 or 20, more years, and then his life will end. Our constitution will live, I believe, many more years, surely decades and possibly centuries. But it needs repair, a sort of governmental open-heart surgery.

The Founders would be astonished at how well the Constitution has served for so long. George Washington didn’t expect it to last for more than 20 years. Thomas Jefferson thought it shouldn’t live that long: “Every constitution . .  . naturally expires at the end of 19 years.”  Each generation, he thought, needs its own rules.

The Founders didn’t expect the Constitution to last more than 20 years.

Instead of trying to write a new constitution every 20 years we have amended the one we have, 27 times. The first ten amendments, the Bill of Rights, were added within three years. The other 17 were passed sporadically over the next two centuries.

Amending the Constitution is designed to be difficult, but the difficulty is relative. During the Progressive Era, four amendments passed in an eight-year period (1913-1920). In the last 50 years, there has been only one, a minor change about congressional pay.

Why are amendments easy to pass in some periods, and so hard in others? So hard for us? Because amendments require a supermajority in both houses of Congress and among the states. That is possible only when parties are willing to cooperate, or when one party dominates. Neither of those things is true now.

It follows that term limits for Supreme Court Justices can’t be accomplished at the moment by amending the constitution. Instead, Congress must pass a law. And, of course, eventually the Court itself would decide whether the new law accords with the Constitution. The difficulties are deep.

Term Limits: Why?

If term limits are so hard to achieve, why bother to try? The present six to three conservative advantage on the Court will motivate progressives for change (and conservatives against it). But the issue is deeper. A basic function of democracy is to help people who disagree live together in peace. The Court’s role is to resolve disputes in a way recognized as legitimate and final. Its decisions should allow us to move on, working together within boundaries we all accept. Stability depends on everyone recognizing the authority of the Court, and abiding by the law as it has been interpreted.

Democracy is meant to help people who disagree live together in peace. The Court’s role is to resolve disputes in a way recognized as legitimate and final.

Without such shared recognition, “the people” can become a mob. That happened on January 6, 2021. The insurrection -- an attempt to overthrow the government by force –was carried out by people deluded about the legitimacy of the election.

Respect for the Court is at historically low levels. As respect weakens, the danger of rogue actors becoming violent increases.

Two reasons for the Court’s diminished standing

One is this Court’s striking willingness to overturn precedent, in dramatic and life-changing ways.

In Dobbs, the Court allowed states to criminalize abortion, and 24 have done so.

In Citizens United, the Court allowed profit-making corporations to donate unlimited money to political campaigns. The defining goal of such corporations is to benefit themselves, not the country.

The Court has made it impossible to criminally prosecute a president for any official act, and defines ‘official’ broadly. Trump’s responsibility for January 6 will never be officially settled if charges cannot even be brought.

The second reason for distrust is that these decisions are perceived as partisan. The accusation is not quite right; the decisions are not meant to benefit the Republican party, and (as in Dobbs) sometimes don’t. More accurately, these, like all decisions, were ideologically informed, and reached by justices chosen because their ideology conformed with that of the party in power. Until the 1980s ideology was only one focus of nomination hearings. It became the dominant factor, in a political battle waged in public, in 1987, when Democrats defeated the nomination of Robert Bork.

The partisan taint deepened with Mitch McConnell’s manipulation of Senate procedure to block Obama’s nominee (Merrick Garland) in 2016, and to shepherd Trump’s (Amy Coney Barrett) in 2020.

It's no wonder the Court is viewed as partisan. It has not always been like this. In other times,

“The Supreme Court had been the most-trusted government institution for decades because it acted with humility and avoided dramatically reshaping the law . . . . The justices also modeled civility and how to work across ideological divides.” Henry Gass, CSM

The country would be better off if the Court regained trust. Would term limits accomplish that? Stay tuned.