Since its inception, the Supreme Court has long been regarded as the United States’ arbitrator of the law. It was created as a neutral institution, devoid of any bias or party inclination, only to intervene when legislative or executive action deviated from what was constitutional. Yet now the Supreme Court, previously seen by some as the quintessence of justice, has been plagued by the partisanship that has afflicted other facets of American government. As a result, American legislators should seek to reconsider our interpretation of the Constitution’s “good behavior” clause in order to better combat the maladies partisanship has created.
Tracing back to Federalist No. 78, Alexander Hamilton dictated that the judicial branch would be the weakest of the three, as it would only issue judgments and remain dependent on the other two branches for efficacy. Furthermore, Article III of the Constitution, which established the judicial branch of the federal government, refrained from delineating the exact organization of the Supreme Court, leaving its development largely up to Congress. What was specified, though, was that judges would continue to hold their offices during good behavior. This “good behavior” clause maintains that those who serve as judges for the Supreme Court can only be removed from office through impeachment — essentially establishing lifelong tenure.
The purpose of lifelong tenure was to sequester judges from any volatile political landscape that could jeopardize the integrity of the court. Judicial independence was imperative to the notion of a Supreme Court; with a lifetime term, judges could execute their duties in preserving the intentions of the Constitution unbeholden to external pressures. The gravity of judicial independence only intensified with Marbury v. Madison, which ruled that the Supreme Court could void acts by Congress that it deemed unconstitutional. As a result, Supreme Court justices are now given the immense responsibility of impartially interpreting the Constitution out of duty simply by serving on the highest tribunal of the land.
But truly how impartial are the judges of today? In the last two Supreme Courts, more than 20 percent of all rulings were decided by a 5-4 majority: pre-World War II, less than 5 percent were. Unlike in the past, the voting behavior of most any justice can be highly predictable given the party of the president who appointed them. In fact, six out of the ten most important Supreme Court cases thus far in 2019 were decided along ostensible partisan lines, with an added swing vote by either Chief Justice John Roberts or Associate Justice Brett Kavanaugh. This newfound court polarization can be attributed to the changing dynamic of norms regarding judicial appointment, for example, strategically-timed retirements by judges and near-exclusive consideration of ideological similarity and reliability by presidents. With justices voting so commonly along party lines in controversial cases, the Supreme Court seems to be nothing more than a puppet of the executive branch.
The framework of European nations’ constitutional courts demonstrate that perhaps our Supreme Court isn’t doomed to democratic degeneracy if reform can be achieved. In Germany, the appointment process is conducted bipartisanly, with negotiation between both parties in order to reach concord on suitable judicial candidates. Spain and Portugal similarly require a legislative supermajority in order to confirm most or all court nominees. European nations’ implementation of a bipartisan confirmation process seems much more sensible, and the United States would be wise to imitate it if it hopes to overcome its rampant hyperpartisanship.
Fortunately, modifying our current Supreme Court wouldn’t even require the arduous amendment process. The “good behavior” clause is ambiguously worded, and it’s possible that our Founding Fathers meant something other than till death when articulating the length of a judge’s tenure. Rather, “good behavior” could plausibly be interpreted as behavior in which the duties of office are executed professionally and righteously. And with the blatant partisanship seen on the Supreme Court today, it isn’t unreasonable to believe that the current state of the court is not in good behavior. Therefore, a simple act of Congress would suffice as a step in the right direction to fight the plague of hyperpartisanship that has weakened the integrity of our nation.
Yasmeen Dohan can be reached at yasmeend@umich.edu.