Editorial: Constitutional amendment could improve the Supreme Court

photo by: Journal-World Photo Illustration

Lawrence Journal-World Editorial

The United States Constitution has not been amended since 1992. Perhaps you have forgotten the hoopla surrounding the 27th Amendment. Granted, it was a long time in building. The amendment — clarifying issues of pay raises for members of Congress — was approved 203 years after it was formally proposed by James Madison and others.

Today’s Congress dreams of such efficiency.

It also ought to dream of another constitutional amendment. It is clear that the Supreme Court is at risk of falling prey to Congress’ reverse Midas touch. Nothing Congress touches turns to gold these days, and heaven help us if we still had to pay debts created by Congress in that metal.

The recent confirmation hearings for Judge Amy Coney Barrett to the Supreme Court has become the most recent reminder of how little Congress cares about protecting the court’s standing in America.

To be certain, politics have always been a part of the Supreme Court and the selection of justices. But it is abundantly clear that the two parties no longer have any agreed-upon rules for the confirmation of justices, and there certainly is reason to believe that, if Democrats end up controlling the White House and both houses of Congress, legislation will be approved to enlarge the Supreme Court’s membership.

By itself, the expansion of the court is not problematic. The country has functioned fine with a larger Supreme Court in its past. The problem would be what happens next. If Democrats add seats to the court, then Republicans will look for a chance to add more or to make other changes aimed solely at creating an advantage for their party and philosophies.

Politics is a game of payback. That’s been true forever, and it unlikely to ever change. In America, the Constitution has been the device that has kept the game from spiraling out of control.

That’s why America needs a Constitutional amendment creating a set of rules for the Supreme Court. Ideally, an amendment would spell out five things:

1. Set the number of justices the Supreme Court has.

2. Create basic eligibility requirements for justices.

3. Create a maximum number of years a justice can spend on the court.

4. Proscribe a formal code of ethics that Supreme Court justices must adhere to.

5. Clarify how long a nomination to the court can sit without a vote from the full Senate.

Can such an amendment be passed in today’s political climate? Well, of course not. What can pass with two-thirds of a vote of Congress these days? (Notably, though, a president has no role in the Constitutional amendment process. So, if one party can gain significant control of both houses, if wouldn’t need to win the signature of a president.)

An amendment, though, would require approval of two-thirds of the states (34, currently.) That process would ensure messiness. Perhaps the most disconcerting chart in America is a color-coded map showing the red and blue domains of America. Democrats control the masses of population. Republicans control the masses of geography. The Founding Fathers ensured that both would matter. They did not ensure both would get along.

But we should try to accomplish this. Likely, the best we could hope for is an amendment that would set term limits — some polls show 60% of the population approves of such an idea — and creates some basic eligibility requirements. Why does it make sense to have basic age and residency requirements for the president and members of Congress, yet no requirements of any sort for a Supreme Court justice? The common sense of the populace would prevail on those ideas, if they simply could escape the Congressional chambers that devour common sense.

The amendment would not solve all problems facing the standing of the court. But the term limit idea — say a 20-year term — would lower the temperature somewhat on the Supreme Court confirmation process. The stakes still would be high, but finite.

Citizens of America in 2223 surely would appreciate the lower temperature.


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