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Darrell Berkheimer: Reforming Supreme Court

It was on Oct. 29 of 2016, just 10 days before the election, when The Union published my commentary, “The big reason for not wasting your vote.“

I wrote that because I had heard that some folks were planning on voting for the Libertarian or Green Party candidates, or not voting at all — rather than vote for one of the candidates nominated by our two major parties.

Then I explained (2016 excerpts in italics):



It’s not simply a matter of who will live in the White House – because that involves only a four-year term. Of much more importance is casting your ballot for how you want vacancies on the Supreme Court to be filled during the next four years.

It’s very likely the winning presidential candidate will be involved in filling the current vacancy, and then could be nominating three more Supreme Court justices during the next four years.



Filling those vacancies will have profound effects on our nation that will last for decades.

The high court remains in a deadlocked situation with four conservatives and four liberals after the death of conservative Justice Antonin Scalia … and the subsequent failure of the Republican controlled Senate to confirm President Obama’s nomination of federal appeals court Judge Merrick Garland.

That deadlock could change drastically during the next four years as a result of retirements or death — because the ages of three justices will turn to 84, 81 and 79 when their birthdays occur next year (2017).

Ruth Bader Ginsburg will be 84 on March 15; Anthony Kennedy will turn 81 on July 23; and Stephen Breyer will be 79 on Aug. 15.

Both Ginsburg and Breyer are liberal justices, while Kennedy usually votes as a conservative. So Donald Trump in the White House could possibly change the current four-four deadlock into a seven-to-two majority for conservatives.

In contrast, the Supreme Court could be changed to a six-to-three advantage for liberals if Hillary Clinton is elected.

With either outcome, the high court could become very one-sided. That likely will result in major repercussions on many controversial issues, including some that have been quite divisive.

All of that turned out to be quite prophetic — as President Donald Trump put three members on the high court. Only Justice Breyer waited to announce his retirement until after President Joe Biden was elected.

And now we see how those changes resulted in a high court draft ruling announced earlier this month that ostensibly will negate Roe v. Wade abortions protection — if the Supreme Court makes the draft ruling permanent this summer.

My purpose in repeating what I wrote nearly six years ago is not merely to say I told you so. Instead, I wish to emphasize the many repercussions that can result from voting, or failing to vote, and the need for Supreme Court reforms.

The draft ruling on Roe v. Wade draws more attention to the power assumed by nine people who are not elected, yet have been appointed to life terms. And it stresses the need to rein in their biases as some appear more and more to be acting according to their individual political affiliations and ideologies.

Some factions want to add more justices, hoping to achieve better political balance. But instead, it would provide an opportunity for the high court to become even more one-sided. Nor would expansion do anything to resolve judicial review issues.

A better solution is a reform proposed a couple of years ago in the Common Purpose report issued by a citizens commission — after two years of regional community hearings. The commission, formed by the American Academy of Arts and Sciences, advised 18-year staggered terms for Supreme Court justices, with one appointed every two years.

That would provide each president with two nominations per four-year term regardless of which factions control the executive and legislative branches. And it would remove the justices from life tenure.

Other actions also are deemed necessary — to limit overreach of judicial review because the constitutional implied powers are subject to various interpretations, which have spurred numerous warnings by political science experts.

Adoption of a Supreme Court code of ethics could go a long way toward resolving those issues, including a requirement for recusal from voting whenever there is the appearance of a conflict of interest.

That issue drew considerable attention as a result of Justice Clarence Thomas ruling on activities involving efforts to overturn the 2020 election when his wife, Ginni, apparently was involved in some of those efforts.

Each of these changes can be established by federal legislation and will not require a constitutional amendment — because the Constitution does not explicitly establish the type of judicial work to be done during a life term nor prevent Congress from enacting terms.

Recent developments underscore that such reforms are needed.

Darrell Berkheimer, who lives in Grass Valley, is a frequent contributor to The Union. He has nine books available through Amazon. His two “Essays” books include nearly 120 columns published by The Union, plus a variety of travel and photo essays. Contact him at mtmrnut@yahoo.com.


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