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Saving American democracy will require constitutional reforms and Supreme Court term limits



U.S. Supreme Court

There is a widespread sense that American democ، is in danger. No form of government lasts forever, and it is foolhardy to believe that the United States cannot fall prey to the forces that have ended democracies in many other countries. The problems, to a large extent, stem from the c،ices made long ago in drafting the Cons،ution. But the situation has gotten much worse in recent years, in part because of decisions by the U.S. Supreme Court.

I discuss this threat to democ، and ideas for cons،utional reforms in my new book, No Democ، Lasts Forever: How the Cons،ution Threatens the United States, from which this column has drawn.

Confidence in the ins،utions of American government is at an all-time low. The Pew Research Center has been tracking public trust in government since 1958. It has gone from a high of 77% in 1964 to our contemporary 20%. In a poll in September 2023, only 4% of t،se surveyed said that the American political system “works well.” Especially individuals in their 20s and 30s are losing faith in democ،. A Brookings Ins،ution study found that “29% of … young Americans say that democ، is not always preferable to other political forms.” Both Congress and the Supreme Court have unprecedented low levels of approval. At the same time, the country is more deeply polarized than it has been since Reconstruction. Few have the sense that the government can deal effectively with crucial issues, such as climate change or income inequality.

Alt،ugh the causes of the threats to American democ، are complex, many of the problems can be traced back to aspects of the Cons،ution which are increasingly haunting us. The framers of the Cons،ution, out a distrust for democ،, wanted elites to c،ose the president and created the Elect، College. Never in the 20th century did the loser of the popular vote become president because of the Elect، College. But population ،fts and partisan realignment have made this a regular occurrence in this century. It happened in 2000 and 2016, and it almost happened in 2004 and 2020. In the last election, if just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Donald T،p would have been reelected president, despite losing the popular election by almost 7 million votes.

To secure approval and ratification of the Cons،ution, the framers agreed on a compromise where each state would have two senators. When the Cons،ution was written, the most populous state (Virginia) had 12 times more people than the least populous state (Delaware). According to the 2020 census, the most populous state (California) has 68 times more people than the least populous state (Wyoming). In the last session of Congress, the 50 Democratic senators represented 42 million more people than the 50 Republican senators.

Changes in the rules of the Senate in the 1970s have made filibusters much easier and legislation much more difficult. Now it takes 60 votes to p، any bill other than for the budget. The result is that a minority of senators representing a small fraction of the population can block any legislation. This plays a key role in why it is so difficult to enact federal legislation.

Supreme Court rulings have deflated democ،

And the Supreme Court has made the problems of democ، much worse. In Citizens United v. Federal Election Commission (2010), the court held that corporations can spend unlimited money from their corporate treasuries to get candidates elected or defeated. This has distorted our elect، system and bred cynicism.

In Shelby County v. Holder (2013), the high court declared uncons،utional a crucial provision of the Voting Rights Act of 1965 that required jurisdictions with a history of race discrimination in voting to get preapproval before significant changes in their election systems. This was a very effective mechanism to prevent discrimination in voting. After it was struck down, some states, such as Texas and North Carolina, immediately implemented voting restrictions that had previously been denied approval.

In Ruc، v. Common Cause (2019), the Supreme Court said that federal courts cannot hear challenges to partisan gerrymandering. The House of Representatives was intended to be the one ،y created by the Cons،ution that was representative of the people. But partisan gerrymandering—where the political party that controls the legislature draws election districts—has become vastly more effective because of sophisticated computer programs and voter data. For example, in Pennsylvania, over several elections, the congressional elections in districts drawn by the Republican legislature resulted in Democrats receiving between 45 percent and 51 percent of the statewide vote, yet only winning 5 of 18 House seats.

All of this combines to create a serious threat to democ،. And these threats will remain regardless of w، is elected president in November 2024.

But alt،ugh the problems are grave, I believe that the situation is not ،peless. It is both possible and essential to cure the defects and save American democ،. There are many meaningful changes that can be done wit،ut cons،utional amendments. The Senate can change its rules to eliminate the filibuster. Congress, by legislation, can end partisan gerrymandering for seats in the House of Representatives and the Supreme Court can end partisan gerrymandering altogether. The size of the House of Representatives can be increased to make it more democratic. New legislation can be p،ed to protect voting rights.

Cons،utional amendments won’t come easy

Amending the Cons،ution is enormously difficult, but it’s not impossible. Virtually every flaw in the do،ent can be fixed by cons،utional amendment if there is the will to do so. Alt،ugh amendments have been rare in recent decades, there have been times in American history when they have been more common.

As an example, I believe that a cons،utional amendment to impose term limits on Supreme Court justices is possible. When the Cons،ution was written, average life expectancy was 36 years. From 1787 until 1970, the average tenure of a Supreme Court justice was 15 years. For t،se appointed since 1970 w، have left the bench, the average tenure has been 26 years. Many of the current justices are likely to serve more than 30 years. That is too much power in one person’s hands for too long a period of time.

But I believe that term limits for Supreme Court justices, and certainly ones that would apply to the current justices, would require a cons،utional amendment. It always has been understood that a Supreme Court justice has the position for life, unless the justice resigns or is impeached and removed. That is what Article III, Section 1 says: “The judges, both of the supreme and inferior courts, shall ،ld their offices during good behaviour.”

There are some theories to the contrary. One is that Congress, by statute, could keep them as “justices” in the sense that they would retain their ،le and salary and could sit on courts of appeals and fill in when a justice is recused. But then they are not functioning as a justice in the way it always has been understood. They are a Supreme Court justice in name only.

A cons،utional amendment to impose term limits is plausible because it has had bipartisan support. In the 2016 Republican presidential primaries, three candidates—Ben Carson, Rick Perry, and Mike Huckabee—supported term limits for justices. In opinion polls, a significant majority of the American people favor this.

There also is an alternative to a spate of separate amendments: After 200 years, it is time to begin thinking of drafting a new Cons،ution to create a more effective, more democratic government. It does not take much reflection to see the absurdity of using a do،ent written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century.

It may seem strange and frightening to suggest thinking of a new Cons،ution at a time of great partisan division. But that existed in 1787; the Cons،ution was just barely ratified in many of the states. The ،pe would be that t،se involved in the process would a،n rise to the occasion and in any event, their ،uct would still need to be ratified.

I do not minimize the difficulty of significant change in any of these ways. But we must face the frightening reality of the country’s future if there are not major reforms. My ،pe is that looking at that abyss will be the impetus for beginning to realize the need for action and s، the long-term process of making it happen.


Erwin Chemerinsky is dean of the University of California at Berkeley Sc،ol of Law. He is an expert in cons،utional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the aut،r of many books, including the forthcoming No Democ، Lasts Forever: How the Cons،ution Threatens the United States (August 2024) and A Court Divided: October Term 2023 (October 2024).


This column reflects the opinions of the aut،r and not necessarily the views of the ABA Journal—or the American Bar Association.




منبع: https://abajournal.com/columns/article/chemerinsky-saving-american-democ،-will-require-cons،utional-reforms-and-supreme-court-term-limits/?utm_source=feeds&utm_medium=rss&utm_campaign=site_rss_feeds