What should we do about the Supreme Court itself?

A wide lens changes perspective

Framing

I'm returning to Amanda Ripley's fantastic article "Complicating the Narrative" about applying professional mediation techniques to writing about conflict in our society. Her first recommendation was to listen to a person, then amplify the contradictions in an answer as a way to tease out nuance. Then, as a person explains more, there's a greater opportunity for common ground.

The second recommendation -- adopt a wider lens -- is useful when you've hit a roadblock in a conflict. The purpose is to "start a bigger conversation," as Ripley writes:

Decades of research have shown that when journalists widen the lens [...] the public reacts differently. Starting in the 1990s, Stanford political science professor Shanto Iyengar exposed people to two kinds of TV news stories: wider-lens stories (which he called “thematic” and which focused on broader trends or systemic issues — like, say, the causes of poverty) and narrow-lens stories (which he labeled “episodic” and which focused on one individual or event — say, for example, one welfare mother or homeless man).

Again and again, people who watched the narrow-lens stories on the welfare mother were more likely to blame individuals for poverty afterwards — even if the story of the welfare mother was compassionately rendered. By contrast, people who saw the wider-lens stories were more likely to blame government and society for the problems of poverty. The wider the lens, the wider the blame, in other words.

Which brings us to the recent nomination of Brett Kavanaugh to the Supreme Court. Mimicking how Mitch McConnell and company treated Obama nominee Merrick Garland, several senators announced their opposition before Trump announced the the pick, citing a corrupt process. It's fait accompli that nearly all Democratic senators will vote against the nomination. 

In short, conflict over Kavanaugh's nomination isn't going to lead us anywhere productive. It's now an exercise in raw power politics. 

We can and should debate the specifics of the nomination. We'll likely have more interesting information in a couple of weeks. For now, let's consider what the Supreme Court could be. 

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Context

From The Week

First, some factors that got us here:

• Increasing gridlock in Congress made it more difficult to address policy problems through legislation. Major points along this route include instituting the Hastert Rule, banning earmarks, the increasingly regular use of the filibuster (especially during the Obama years), the gutting of campaign finance laws thanks to Citizens United, and the rise of partisan news outlets. 

• This caused presidents of both parties to use executive orders and executive branch rule-making process to enact more policy. 

• This means courts are playing an ever-more important role in deciding how far the president and regulatory agencies can go in enacting policy. This has massive implications for both conservatives and liberals.

• The Supreme Court is one of the few places in the American system where issues can be decided with a sense of finality. This increases the stakes even more.

• The Supreme Court is, by design, not a very democratic (note the small-d) institution. That's not necessarily a bad thing. The purpose of lifetime appointments was to insulate its members from the pressures of elections and politicians. 

• Medical advances like vaccines, antibiotics, and various cancer treatments (among hundreds of others) have made the average lifespan of a highly educated American to be much longer than Founders could've imagined. (Life was a little more capricious in the late 1700s.)

• As Republicans have lost the popular vote more often**, they've depended on anti-democratic (again, note the small-d) measures to maintain power. This includes maximizing the number of conservatives in the judiciary, while curtailing the number of judges nominated by Obama. In addition, conservatives built a massive legal infrastructure since the founding of the Federalist Society in 1982 to ensure the farm system always has enough depth.

** George W. Bush's 2004 campaign is the only time the GOP won the popular presidential vote in 30 years. Separately, Democrats in the Senate have consistently gotten more overall votes, but because of the structure of the Senate, control has shifted back and forth between the parties. Republicans and Democrats in the House have alternated winning the overall vote total the past few elections.

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Widening the Lens

We are at an unhealthy point for our democracy (for this and a lot of other reasons).  The pressures on the high court increases the likelihood it could lose the trust of the public. Too much is riding on 1) the power held by a small number of lifetime appointees, 2) the physical and mental health of nine people, and 3) the arbitrariness by which presidents get to make appointments. It's possible Trump could make two or three more appointments and the 46th president may not have the chance to make any. Finally, the political norms that governed appointments for most of the 20th century are no longer operable. 

Here's an idea: a Constitutional amendment making the following modifications to the judicial branch:

• All federal judges -- district, appeals, and Supreme Court -- serve 15-year appointments. This would end the morbid watch for septuagenarian or octogenarian judges to retire or die. This would also encourage appointing judges in the prime of their careers rather than handing a Supreme Court seat to the youngest plausible jurist. This could also lessen the stakes of potential battles if a justice became senile, but refused to step down.

• Judicial appointments should be on a cycle so that equal numbers of seats are up per year. Each president would get to appoint two Supreme Court justices per four-year presidential term. Voters get a realistic expectation of how much to weigh judicial nominations when deciding on a presidential candidate.

• Each presidential judicial nominee is guaranteed an up-or-down vote in the Senate within six months of her or his nomination or the nominee is automatically appointed to the seat. No filibusters. 

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Top of the U.S. Supreme Court

This is less about advocating for a specific set of solutions and more about people thinking what our Supreme Court should be. That's a discussion that could ultimately defuse some of the tensions around both the appointment process as well as the high court's decisions themselves. It's always going to matter, but it shouldn't feel like political Armageddon every time a justice retires or dies.

What say you? Leave a comment here or on Twitter or Facebook.