Breakingviews – Supreme Court could use a Fed-style makeover

Justice Ruth Bader Ginsburg lies in repose under the Portico at the top of the steps of the U.S. Supreme Court building in Washington, U.S. September 23, 2020. REUTERS/Erin Scott

NEW YORK (Reuters Breakingviews) – The Supreme Court is showing its age. The battle to replace Justice Ruth Bader Ginsburg, who died earlier this month, shows that an institution created in the 18th century is creaking under the weight of an entrenched two-party system. But those who dream of reforming America’s top court could take tips from a much newer body: the Federal Reserve.

While one guards the U.S. Constitution and the other sets interest rates, the two organs have much in common. Both have unelected appointees who supposedly operate free of political pressure. The Fed has its independence, and the president can’t fire a justice if he dislikes a decision. They also both wield tremendous power. The nine justices can make sweeping decisions affecting everything from civil rights to campaign finance. Fed Chair Jay Powell used wide-ranging powers to effectively rescue the entire financial system this spring.

Politics has made a mess of the Court’s nomination process, however. When Ginsburg was confirmed in 1993, only three senators voted against her. President Donald Trump’s plan to replace her has already generated outrage from the opposing party. It is only the fourth nomination ever for a vacancy created within 100 days of the presidential vote. Trump’s last pick, Brett Kavanaugh, was supported by only one Democratic senator.

The Fed’s lesser standing isn’t the only reason it inspires less vitriol. Justices have lifetime appointments, so a woman appointed at 48 – the age of Trump’s nominee Judge Amy Coney Barrett – could influence how laws are interpreted for three decades. The central bank has more safeguards. Full terms are only 14 years, with staggered appointments. The Federal Open Market Committee, which sets monetary policy, mixes standing members with rotating Reserve Bank presidents appointed by regional directors, creating geographic diversity.

A Supreme Court with Fed-like term limits and staggered appointments would be less easily shaped by any one president’s influence. If his next nominee is confirmed, Trump will have staffed one-third of the court. The Fed’s practice of rotation is also worth borrowing, by, say, expanding the number of justices, and then having the Chief Justice and a rotating set of eight others vote each term. The perception that the bench is structurally skewed towards any ideology should fade.

Such reform looks implausible today. Many changes to the court require a Constitutional amendment. And the need isn’t urgent, since decisions are often unanimous. The close splits are normally only for politically charged issues like abortion.

The Fed doesn’t tackle anything so emotive. But because it was originally created just over a century ago, it has another advantage: it’s simply better designed to deflect modern partisan flames.


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