A term limit solution to SCOTUS circus?

THE IDEA THAT the future tilt of the Supreme Court rested with Ruth Bader Ginsburg’s oncologists is about all you need to know to understand something is wrong with how we fill seats on the most consequential court in the land. 

While no medical intervention likely could have staved off Ginsburg’s death last Friday from pancreatic cancer at age 87, her physicians no doubt had a much clearer idea than anyone else in recent months that the country might be plunged into an epic pre-election partisan battle over the seat she held for 27 years. 

There has been lots of hand-wringing and ruminating on the left over whether Ginsburg bears some blame for the circus that has ensued. Already in her 80s at the start of President Obama’s second term, why, those voices have asked, didn’t she retire then and let him nominate a replacement of similar ideological bent?

But there are also growing calls for structural reform that would put an end to all the gamesmanship that has become an increasing part of the court’s legacy. The most straightforward of the proposals: staggered term limits on the service of high court justices.

Conservative Boston Globe columnist Jeff Jacoby endorses the idea today, and says it’s a view that enjoys broad support across the ideological spectrum. He says Chief Justice John Roberts, a George W. Bush appointee, voiced support for the idea as a White House lawyer in the early 1980s, while Justice Stephen Breyer, appointed by Bill Clinton, did so as recently as a 2016 interview. “In fact, it’d make my life a lot simpler,” Breyer said.

“There aren’t many issues on which Americans still see eye to eye, but this appears to be one of them,” writes Jacoby. The same might be said about his views on big issues of the day and those of the paper’s liberal-leaning editorial board. But Jacoby’s column appears on the same day that a Globe editorial also issues a call for 18-year terms on court appointments. 

The paper says polling in recent years has shown support for such a change ranging from 72 percent to 80 percent of all Americans. 

A 2006 article in the Harvard Journal of Law and Public Policy by Northwestern University law professors Steven Calabresi and James Lindgren laid out the idea in detail. The basics of it would have presidents nominate one new justice for an 18-year term every two years — in odd-numbered, non-election years. Rather than having the number of appointments a president makes left to chance — or the actuarial table readout on the nine justices when he or she takes office — presidents would nominate two justices during each four-year term. 

Ilya Shapiro, writing in The Atlantic, says there are a lot of good arguments for the 18-year term proposal. But Shapiro, who is director of the Robert A. Levy for Constitutional Studies at the conservative Cato Institute, cautions that such a reform would be no cure-all. 

On the most practical level, he writes, transitioning to such a system would take decades, during which time the court would have a mix of justices appointed for life and for 18-year terms. It would be a judicial version of the adage about trying to fix the plane while flying it. 

And even once fully in place, such a system alone could not prevent the hyper-partisan approach to governing that has increasingly become the norm. What if, under such a reform, “a GOP-controlled Senate blocks a Democratic president’s 2025 and 2027 nominations?” Shapiro asks. “A Republican president is then elected in 2028 and the Senate confirms four nominees: in 2029 and 2031, to serve the regular 18-year terms, and for the two empty seats, with 14 and 16 years left on their terms, respectively. This could happen in every cycle of divided government, and would exacerbate, not lessen, the politicization of the confirmation process.” 

In other words, whether it’s true that we get the government we deserve, there’s no getting around the fact that we get the one shaped by the politics of the time. 

MICHAEL JONAS

FROM COMMONWEALTH

In response to comments from President Trump, two Democratic lawmakers file a bill that would bar state and county law enforcement officials from policing polling places. Bristol County Sheriff Thomas Hodgson, a Trump supporter, calls the bill “outrageous.”

Opinion: Jim Jordan, the former director of strategic planning for the Boston Police Department, says history suggests three rulings by the Supreme Judicial Court on race and policing will improve policing over time….Paul Hattis examines the ins and outs of health insurance rates going up when health care spending is going down….Jay Ash of the Massachusetts Competitive Partnership and Ed Lambert of the Massachusetts Business Alliance for Education propose a new vision for equitable learning.

 

FROM AROUND THE WEB

 

MUNICIPAL MATTERS  

The makeover of Suffolk Downs in East Boston into a huge mixed-use development faces a big vote this week by the Boston Planning and Development Agency. (Boston Herald

The so-called balancing rock in Holliston is no longer balancing. (MetroWest Daily News)

Disability services agency Cape Abilities’ farm day program helps feed homebound seniors. (Cape Cod Times)

HEALTH/HEALTH CARE

The US Centers for Disease Control warns against Halloweening this fall. (USA Today)

WASHINGTON/NATIONAL/INTERNATIONAL

With Sen. Mitt Romney’s support, Senate Republicans probably have enough votes to move ahead with voting on a replacement for Ruth Bader Ginsburg on the US Supreme Court. (NPR)

President Trump on Tuesday said he has expanded a ban on racial sensitivity training to federal contractors. (NPR)

ELECTIONS

New Washington Post/ABC News polling shows President Trump and Joe Biden in a tight race in Florida and Arizona, crucial Sun Belt states that could tip the election. 

BUSINESS/ECONOMY

Home prices statewide and in Greater Boston continue to soar amid tight inventory. (Boston Globe

A fishing group asks Gov. Charlie Baker for help fighting a federal monitoring rule that they say would cripple the commercial groundfish industry. (Gloucester Daily Times)

EDUCATION

Merrimack College quarantines a dorm with more than 250 students after 17 students test positive for COVID-19. (Eagle-Tribune)

Amid tremendous financial uncertainty, UMass makes deep cuts now. (Daily Hampshire Gazette)

MassLive profiles the struggles of a Conway family that chose remote learning but doesn’t have good enough internet access, due to where they live, to have the children online all day. 

ARTS/CULTURE

Many see irony in the fact that the virus pushed off the commemorations planned for the 400th anniversary of the Pilgrims landing in Plymouth. (Associated Press)

Salem and Plymouth — which had been expected to be major tourist destinations this fall — are handling COVID-19 in different ways. (Boston Business Journal)

TRANSPORTATION

The MBTA will move the location where idling trains sit in West Gloucester in response to resident complaints. (Gloucester Daily Times)

Massachusetts highway exit numbers will change this October to reflect a new federal mandate that requires mileage-based numbers. (WCVB)

CRIMINAL JUSTICE/COURTS

The mother of an autistic boy sues the Worcester police for breaking her son’s arm while using excessive force against him, then refusing to release the records of the incident to her. (Telegram & Gazette)

The Globe dissects the chaotic 7 minutes leading up to the fatal shooting by police of Juston Root, a mentally ill man whose killing has been ruled justified by Norfolk District Attorney Michael Morrissey. 

A Plymouth man shot by Kingston police in a confrontation early Tuesday morning has been charged with three counts of assault with a dangerous weapon. (Patriot Ledger)   

Fall River Mayor Paul Coogan’s administration is hiring a Boston-based firm to conduct a performance audit on the Fall River Police Department to review efficiencies at the city law enforcement agency. (Herald News) 

The Supreme Judicial Court rejects a “change-of-use” appeal by the town of Sudbury, which argued the MBTA couldn’t sell an abandoned rail line to Eversource for use as an underground power line corridor. (MetroWest Daily News)

The ACLU launches a campaign to highlight police misconduct, while a police union is calling on elected officials to denounce anti-police hostility and violence. (Telegram & Gazette)

Private companies that control some streets on Boston’s Fan Pier slap drivers with parking tickets made to look like city-issued citations, but the sanctions are probably unenforceable, writes Globe consumer reporter Sean Murphy. 

MEDIA

NPR Supreme Court reporter Nina Totenberg says her close and rarely disclosed friendship with the late justice Ruth Bader Ginsburg was not a conflict of interest but a benefit to her listeners. (Washington Post)