Britain's vote to leave the European Union was announced weeks ago and is already fading in American minds in the wake of attention-grabbing police shootings and retaliatory attacks. But we would do well to consider what led to the much-discussed Brexit.
Our president weighed in on the issue prior to the referendum, saying, “The U.K. is at its best when it’s helping to lead a strong European Union. It leverages U.K. power to be part of the EU. I don’t think the EU moderates British influence in the world, it magnifies it.”
Those in favor of staying in the EU tended to use a similar pragmatist position, that the United Kingdom would be wealthier and exercise more clout if it remained in the EU. Proponents of leaving argued on ideological grounds that British citizens had lost real self-governance to EU technocrats and needed to take back control of their own destiny.
While the EU is a representational form of government, with citizens of member countries electing lawmakers that vote on potential laws, an unelected body called the European Commission has powers over parts of the legislative and budgeting processes.
This form of government makes those with the most power the least accountable to the people — the ultimate reason Britain voted to exit the EU. Its citizens felt that distant powers were making decisions about the immigration crisis that flew in the face of popular opinion.
On our side of the pond, a similar situation has developed with the Supreme Court as partisanship and increasing judicial activism have rendered it another lawmaking body, albeit one not directly accountable to the people. The Supreme Court has declined from its intended role as an unbiased referee of the legislative and executive branches to its present polarized dysfunction. And as the presidential election approaches, both sides have warned that if the opposing candidate is elected, his or her ability to nominate justices to the Supreme Court will mean the dominance of that candidate’s party for the foreseeable future.
If Clinton or Trump were to follow Obama's precedent and nominate young justices, like he did with then 50-year-old Elena Kagan and 55-year-old Sonia Sotomayor, the nominee or nominees could easily have a 30-year career, which, for scale, is more than seven presidential terms.
The state of the Supreme Court has become unfair, both to the justices and to the people. Because they have become so crucial to obtaining party goals, it seems that justices are now expected to serve as long as possible while the opposing party is in power and only retire when a same-party president can appoint a suitable replacement. This means that justices feel the need to continue well past the age at which most professionals retire, depriving them of their golden years and (probably) making them less proficient due to advanced old age.
The Washington Post reported on a study by the Harvard Journal of Law and Public Policy that showed that before 1971, the average age of Supreme Court Justices’ retirement was 68.3, but since then it has increased to 78.7. The study concluded that this prolonging of career was due, at least in part, to "justices timing their retirements for political advantage.”
That Supreme Court justices now feel like they must stay on until a same-party nominee can replace them is unfortunate but reflective of the current political climate and not easily fixed. Therefore I suggest that we institute 12- or 16-year term limits for Supreme Court justices. These would be timed to coincide with presidential elections so that candidates could inform voters on the nominees they are considering.
Ideally, the judicial activist policies of recent courts should revert to the constitutional standard of oversight over the executive and legislative branches, but a constitutional amendment establishing term limits for Supreme Court Justices would in the meantime restore democratic involvement to the lawmaking process.
Our friends in Britain noticed that the EU wasn’t representing the will of the people and several weeks ago did something about it. Similarly, we ought to perceive that the Supreme Court has become highly politicized while remaining unresponsive to voters and act to rein it in.