The future of the U.S. Supreme Court is politically fraught.
The court’s partisan balance has long been a hot-button issue, and both Democrats and Republicans can correctly claim that the other party bears at least some blame for the politicization of the federal judiciary.
In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice Antonin Scalia died and the U.S. Senate’s Republican majority refused to let President Barack Obama fill the vacancy.
This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative Neil Gorsuch as Scalia’s replacement. Four years later, though, Republicans rushed to fill the vacancy left by the death of liberal Justice Ruth Bader Ginsburg less than two months before a presidential election.
Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been calling for President Joe Biden to add more justices to the U.S. Supreme Court in hopes of reversing Republican efforts to enshrine conservatism within the courts.
In response to those calling for reform, Biden has created the Presidential Commission on the Supreme Court of the United States, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”
This commission – which includes scholars, lawyers and political advisers – could look at top courts overseas for ideas about how to depoliticize the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.
State court lessons for depoliticization
Following the model set by the U.S. Constitution, many state constitutions initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty rather than judicial temperament and fair-mindedness.
In the mid-1800s, populism swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the popular election of judges.
This did not solve the problem of judicial politicization, as judges were often beholden to the political machines that helped them get elected. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, between 1918 to 1940 only two Missouri Supreme Court judges were reelected.
In 1940, Missouri became the first state to adopt what is now called the “Missouri Plan” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.”
Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees based on merit. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, the governor’s pick does not usually need to be confirmed by the state legislature because the pick has already been vetted by the nonpartisan commission.
For retention elections, judges face no opponent and are listed on the ballot without political party designation. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as Illinois, nonpartisan retention elections are used when it’s time for reelection.
Today, more than 30 states use some form of assisted appointments. More than 20 states use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.
Showing the way forward?
Advocates of Missouri’s nonpartisan court plan argue that the reforms have been a success. According to Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”
If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 promise to appoint pro-life, conservative judges would be less relevant, because presidents would be limited in whom they could nominate for a court vacancy.
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Additionally, if voters could remove U.S. Supreme Court justices whose opinions differ from that of the majority of Americans, politicians might not feel as pressured to block the appointment of a particular justice for partisan reasons, as the judge would serve on the bench for only as long as they retained public support.