By Rashad Hussain

There is an increasing need to prevent partisan entrenchment of the nation’s high court

As the civil liberties of America hang in the balance, there is an increasing need to prevent partisan entrenchment of the nation’s high court. Rashad Hussain presents a new approach to reforming life tenure

In a country founded on the principle of self-governance where the people have power to choose and replace their leaders, the country’s top jurists—and perhaps some of the most powerful public officials—maintain king-like status. The United States remains the only democratic nation in the world whose Supreme Court Justices enjoy life tenure. Of the 50 states, only Rhode Island follows the federal model.

Our system is broken. After a period of 11 years without any Court appointments, recent vacancies once again raise questions regarding the wisdom of allowing one president to shape the long-term direction of the Court with multiple lifetime appointments. As the war on terrorism escalates and the rights of Muslims, African-Americans, Arab-Americans, and other minority communities hang in the balance, federal courts will continue to serve as a forum for a number of important civil rights struggles. A system that does not guarantee a periodic infusion of Justices runs the risk of one party taking the Court in its own direction with lifetime appointments.

Our system is not broken because many scholars question the legal reasoning of particular decisions such as Bush v. Gore. It is broken because in an era when even one new appointment can significantly alter the balance and direction of the Court, the public cannot be sure that the person it gives the power to appoint new Justices will have the opportunity to make any changes at all. Indeed, between 1994 and 2005, the Court had more impact on the selection of the president than President Clinton and President Bush had on the composition of the Court. The recent vacancies due to the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O’Connor have reignited the debate over the wisdom of preserving a system that allows one president to shape the direction of the Court for decades.

The framers of the Constitution were faced with the difficult task of creating a court that was shaped by the will of the people but also was free from political considerations that could compromise its independent consideration of the law. The current appointment process, however, has resulted in the worst of both worlds: Not only has the Court become a politicized body, but it also runs afoul of the people’s will. The last decades of the twentieth century brought an end to popular constitutionalism, and the onset of an era in which the Second Rehnquist Court engaged in a broad reappraisal of law in a number of areas, including federalism, racial equality, and civil rights. The fundamental changes that ensued stirred debate about judicial usurpation of the people’s role.