How to make American judges less notorious

AT THE TIME of her death, Ruth Bader Ginsburg featured on more than 3,000 pieces of memorabilia which were for sale on Fans of “Notorious RBG” could buy earrings, mugs, babygrows, fitness manuals and Christmas decorations (“Merry Resistmas!”), all bearing her face. The number and variety of these tributes suggest two things. First, that Justice Ginsburg was an extraordinary woman with an extraordinary place in American culture (see article). Second, that something has gone wrong with America’s system of checks and balances. The United States is the only democracy in the world where judges enjoy such celebrity, or where their medical updates are a topic of national importance. This fascination is not healthy.

Republicans have often lamented that the Supreme Court is too powerful. But faced with the opportunity to tilt it decisively in a conservative direction, the prize is too great for them to resist (see article). The Republican majority in the Senate is likely to push through the confirmation of a replacement for Justice Ginsburg before the election. Since judges have life tenure, the newcomer could still be on the court in 2060.

That is bad for American democracy and for the court. In 2016, when a vacancy came up in a presidential year, Mitch McConnell, the Senate majority leader, declared that “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” Having invented that principle when it suited him, Mr McConnell and friends have abandoned it when it no longer does. The move is as cynical, as it is unsurprising.

For the record, the precedent can cut both ways. There have been 25 Supreme Court nominations in presidential-election years. More than half have been confirmed by the Senate. And yet, no appointment has ever been confirmed this close to an election. Precedent is not really the point here, though. Judicial nominations have become exercises in raw power, where the only real principle is that anything goes, so long as your side has the votes.

For Republican senators this unconservative approach to institutions makes sense, for several reasons. For some who privately disdain President Donald Trump, reshaping the court for a generation was the chief reason to support him. Most conservatives still resent the judicial remaking of America from the 1960s onwards, after liberal courts discovered a right to abortion in the constitution, abolished organised school prayer and enshrined other lefty priorities that should properly have been decided by the legislature. And all members of the Republican caucus believe, with some justification, that Democrats began the breaking of the judicial nominations process, and that this unprincipled act is payback for past wrongs. Better to get their retaliation in first.

Inevitably, Democrats feel the same way, also with some justification. Republican presidential candidates have won the popular vote just once in the past seven cycles, yet Republican presidents will soon have appointed six of the nine Supreme Court justices. The division of American politics along urban-rural lines makes the Senate even more anti-majoritarian than this suggests. The Democratic minority in the Senate represents about 15m more Americans than the Republican majority that will confirm Mr Trump’s latest judge. Some Democratic activists favour levelling things up by increasing the number of judges on the court when their party next has power, an idea that, thankfully, has not yet been adopted by Democratic senators.


This cycle of revenge will not end well, either for the court or America. The Supreme Court is not elected. Yet its power is ultimately founded on the trust and consent of Americans who believe that its decisions are impartial and grounded in law, not party. The more brazenly parties attempt to capture it as the choicest political prize, the less legitimate it will be. Imagine that a court judgment determines who wins November’s election. Or that, if Democrats win both houses of Congress and the presidency, their attempts to reduce carbon-dioxide emissions are struck down by judges chosen by Mr Trump. The referee must not only be fair, but seen to be so.

There is a better way. America is the only democracy where judges on the highest court have unlimited terms. In Germany constitutional-court judges sit for 12 years. If America had 18-year non-renewable terms, each four-year presidency would yield two new justices. It would end the spectacle of judges trying to game the ideology of their successor by choosing when they retire. And it would help make the court a bit less central to American politics—and thus more central to American law. Justice Ginsburg was a great jurist. A fitting tribute to this notorious judge would be to make her the court’s last superstar.

This article appeared in the Leaders section of the print edition under the headline "After RBG"

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