If you were with us yesterday, you may have heard us mention the news as it was breaking: a 4-4 split in the U.S. Supreme Court in a case from California involving labor unions and government employees. For conservatives, the hope had been that this would be the case that would deal a major blow, a reversal of precedent. But the divided court left the Ninth Circuit’s decision untouched – essentially a victory for government worker unions.
Bloomberg News called it a genuine instance of deus ex machina for labor unions, that miraculous ending that doesn’t fit the rest of the play.
Let’s rewind for just a moment. For the left, the death of Antonin Scalia was seen as, at least at first blush, an opportunity for President Obama to change the ideological complexion of the Supreme Court from its 5-4 conservative tilt to something more leftward leaning. Republicans have stonewalled on considering Obama’s nominee because, as they see it, the stakes are simply too high. If the shoe were on the other foot, politically speaking, many doubt that a Congress controlled by Democrats would willingly consider a Republican president’s nominee either. So, how much closer to filling that empty seat on the bench?
The stakes are so high with a vacancy on the Supreme Court – the implications so long-term – that the push and shove over Supreme Court nominees can settle into a stalemate. That could leave the SCOTUS impotent for who knows how long. Sanford Levinson, a University of Texas at Austin law professor, says there’s a way out of this gridlock, if that’s what we really want.
“My own view, and the view of an increasing number of people, is that we would get all of the judicial independence we really need if justices were appointed to single, nonrenewable 18-year terms,” Levinson says. “Eighteen years is a long time. This would mean that there would be vacancy every two years. … No single president could ever pack the court because even the two-term president would only get four appointments.”
He says that the inconsistency of Supreme Court Justices’ tenures makes it possible for the appointment process to be unnecessarily politicized.
“Judges themselves are political animals,” Levinson says, “and they will time their resignations, their voluntary leaving of the court, for the party in power.”
So, how exactly would we go about changing the system to this 18-year appointment method? Levinson says we’d likely need a Constitutional amendment.
“It probably would be best to go through a Constitutional amendment, simply because that assures widespread support,” he says, “and nobody would believe that there was any kind of flummery involved… A Constitutional amendment would make it unequivocal.”
Listen to the full interview in the audio player above.