On the Manner of the Appointment of Justices to the Supreme Court: Revising Federalist No. 78

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It is with a not insignificant amount of pride that I look upon the nation that I and my fellow patriots birthed into existence more than two centuries past. Our Constitution has, in its essentials, survived all the tumults that must, of necessity, test every nation that grows in prominence, power, and influence. My study of history since my return to this earth has strengthened my resolve that the only secure foundation for a free government is to set ambition against ambition by dividing public power and trust among those who hold it. And yet our work was not without flaw; it could not have been otherwise, being the creation of flawed, rather than divine, intelligence.

It has come to my attention that one of those flaws has been the subject of inspection and study by a collection of those who count themselves among the most learned in the law. I speak of the report of the President’s Commission on the Supreme Court of the United States. It is well-known that, when acting under the banner of my Christian name, speaking in defense of the public interest as I perceived it, I favored a voluminous and comprehensive presentation of arguments. The Commission is comfortably within that tradition, with one fatal exception. It fails to diagnose the problem with sufficient precision to allow for an effective cure.

As I explained in my first letter devoted especially to the judiciary, numbered 78 by history, the political independence of federal judges is an essential and beneficent innovation of our constitutional design. And it is that political independence that is presently threatened. More precisely, and of equal importance, it is the public perception that the Justices of the Supreme Court are politically independent that is presently under threat. I hasten to avoid any misperception that I mean to attack the integrity of any of the current Justices of the Supreme Court or of any of the judges of the numerous federal courts that now populate the expanded United States. But a public perception of partiality, once lodged in the public mind, can be as harmful to the public’s confidence in the judiciary as the reality.

When last I visited the topic, I treated the method of appointing judges, including Justices of the Supreme Court, as presenting no concerns that depart from the method of appointing public officers of the executive branch. It is now apparent to any whose attention might be devoted to the topic that the different natures of the offices provide ample reason to distinguish their method of appointment. Officers exercising executive authority, be they heads of the executive branch departments or public ambassadors, are, by their nature, fulfilling the duties of the President. They are agents of the President, just as they are agents of the United States. The President must take care that the laws be faithfully executed. Executive branch officers see to it that the President fulfills that solemn duty. But the judicial power is and must be, if liberty is to be safeguarded, exercised in a manner fully independent of the preferences of the Chief Executive. It is healthy for the public to perceive executive branch officers as aligned politically with the President who appointed them to their high office. But it is poisonous for the public to perceive the same about Supreme Court Justices or any federal judges. And that appears to be how the public now routinely understands the Supreme Court’s decisions in the cases that capture the highest portion of public attention.

The Supreme Court today speaks authoritatively on matters affecting the public safety and morals of the people to an extent that we, in debating and crafting the structure of our government, had not anticipated. It is beyond the scope of this paper to either defend or attack this present state of affairs. It suffices to observe that it is unlikely to change. It is a universal maxim of politics that power once conferred, by positive law or mere acquiescence, becomes increasingly difficult to dislodge with time. The Supreme Court’s authority, as the living voice of the now-revered Constitution, is an accepted feature of the constitutional design.

My much-celebrated observation, that the judiciary has “neither FORCE nor WILL, but merely judgment,” must, of necessity, yield to this unforeseen reality. The judiciary, in the public mind, has WILL. I do not regret that the Constitution was not written with words that clearly declare a resolution to the inescapable tension between public order and individual liberty. One cannot regret failing to do what is impossible. The law must be allowed to express the public’s view of the general welfare and how best to achieve it. The individual must be allowed to demand that the public, in pursuing the general welfare, respect those rights that are inviolable. The executive must be allowed to enforce the law. The individual must be allowed to insist that such enforcement is with due regard to the procedures ascribed by law and the standards set by law. The nation has decided that the balance of these concerns will, in the event of controversy, ultimately be left to the courts. That requires judgment, but not merely judgment.

In nature, a balance is achieved when weights are set against each other equally. So it is in law. But the weight of an object is ascribed by nature, and the weight assigned to the interests of the individual and the public in a controversy is a matter of human choice. A court with due regard for legal discipline will purport to moral neutrality in making that choice. It will rely on the wisdom of ages reflected in precedent. It will be attentive to history and circumstance. But one need not be among the most learned in the legal process to perceive that the wisdom of ages can be foolhardy, and precedent must, on occasion, be disregarded. Or that history and circumstance are vast and conflicting, and what they teach can be not only difficult to discern but challenging to translate to a more advanced age. The practical demands of judging add to those insuperable obstacles the need for courts to rule in a reasonable period of time after deliberation, a constraint which necessarily hinders a thorough historical investigation. It is no mark against excellence in the judicial craft that the judge’s personal assessment of the relative weight of competing public and private goods occasionally, and perhaps commonly in the hardest cases, influences the exercise of judgment.

That judges exercise will, it seems, is now widely accepted though rarely openly acknowledged. That is a welcome mark of the high esteem to which judges are held. Respect for the law as announced in legal opinions gains strength from maintaining the view that judges operate beyond the willful passions of politics. But erosion can wither a foundation openly or invisibly until a structure collapses. It is equally catastrophic in either case.

It is not unduly alarmist to say that the erosion of public respect for the courts may be emerging into open public view from the invisible foundations of our respect for the rule of law. Public discussion of the work and decisions of individual Justices of the Supreme Court scarcely occurs without reference to the President who nominated them. It is now quite common for leading candidates for President to boast of their intentions to seat Justices of the Supreme Court who will satisfy the preferences of a particular political constituency. It is my understanding that some observers attribute the current President’s rise to office to his promise, since kept, to nominate the first Black woman to the Supreme Court. This promise, delivered at a pivotal stage of his party’s nominating process, is said to have secured the support of a vital constituency in both number and influence.

The influence of political affiliation on how Supreme Court seats are secured is now a matter of pride among partisans; praise and blame are dispensed to Justices and politicians alike in accord with how effectively their political judgments impact Court appointments. The majority of the Senate, all members of one of the two presently dominant political parties, on a recent occasion exercised their collective political power to deny a Supreme Court nominee any consideration. The stated reason was to allow the people a voice in the selection of a Justice in anticipation of the presidential election that lay nine months away. But it did not go unnoticed that the then-nominating President was of the opposing political party to that of both the President who had nominated the departed Justice and the Senate majority whose advice and consent was required. It was also plain to all that the eight remaining members of the Supreme Court had been appointed four by a President of one party and four by a President of the opposing party. The Court’s political balance turned on this suddenly vacant seat. And when the presidential election produced a change in the political party of the nominating President, but not majority control of the Senate, it was widely understood and, among some, even celebrated that the political balance of the Court was preserved by the Senate’s exercise of its political power.

Just two months before the next presidential election, another seat on the Supreme Court was rendered suddenly vacant. This time, the same political party, still in control of the Senate and the Presidency, seated a new Justice in advance of the presidential election. This success in rapidly securing the appointment of a new Justice, a Justice whose predecessor had been nominated by a President of the opposing party, was praised by those who had likewise praised the delay in seating a new Justice before the prior presidential election. The departed Justice, a revered figure among partisans of the opposite party, received an uncommon degree of opprobrium from her faction for failing to relinquish her seat while her party controlled the Presidency. All of this has left one of the two major parties that organizes political power throughout the nation with the unmistakable impression that the present Supreme Court can be relied upon to advance the political goals of the other political party.

A keen observer of the historical path this process has traversed would question whether a Supreme Court Justice can any longer be seated at a time when the Presidency and Senate are controlled by opposing parties. In the most recent years, even relatively uncontroversial appointments have rarely received more than a handful of votes of support from the party opposite the appointing President. It has been noted that the design of the Constitution failed adequately to account for the influence of political parties and party loyalty on the passions and judgment of public officials. The appointment of Justices to the Supreme Court well illustrates the point. If, as seems perhaps likely, it will become possible to appoint a Justice of the Supreme Court only when a President’s political party also controls the Senate, then it will become nearly impossible to dislodge the public perception that the Justices themselves have political constituencies indistinguishable from those who granted them their commissions.

The urgency of this concern is brought into particularly clear view in light of the past quarter century’s experience with controversies surrounding elections, including elections to the Presidency itself. The expectation that courts and, if necessary, the Supreme Court will opine on the validity of election results, or the manner by which they have been determined, has grown substantially, and such growth has occurred at a time, perhaps not coincidentally, as the public perception of the Supreme Court as politically aligned has also grown. It will require no supernatural powers of foresight to see how these trends might converge to produce a crisis striking at the heart of our Republic.

So, what is to be done to reinforce the foundations of judicial independence that have strengthened the rule of law and served to stabilize public order and confidence in our free institutions for more than two hundred years?

Some, setting their eyes on the aforementioned nomination controversies, propose adjusting the tenure of Justices of the Supreme Court. They observe what is undeniable: two of the just-discussed positions on the Court came open due to the untimely demise of a member of the Court. The unpredictability of Supreme Court vacancies, they note, elevates the importance of any opportunity that presents itself to nominate a Justice. They would make the nomination of judicial appointments regular, limiting each of the nine Justices to an eighteen-year term, with one appointment being made every two years corresponding to years in which there is no election for federal office. This ensures that each President during a single term will have an equal opportunity to nominate two Justices.

This solution reflects a misdiagnosis of the problem. It treats life tenure of the Justices as the disease and limited tenure as the cure. When I last visited the question of tenure for federal judges more than 225 years ago, I observed that life tenure would insulate judges from the influence of the political branches and ensure the political independence of the courts. As we have just established, at least the perception of political independence is no longer sufficiently secured by life tenure. But it does not follow that eliminating life tenure in favor of regular political appointment will secure political independence. It is a solution only if the goal of political independence itself is the problem. It is a cure only if perceived and actual political independence is the disease. It will do nothing to prevent one party in control of the Senate from maintaining an open seat until that party retains control of the Presidency. Regularizing the intensely partisan political process of Supreme Court appointments will reinforce in the public’s mind the extent to which court appointments are yet another forum in which political actors stage political battles. It is a short journey from that view, once settled as an axiom, to a firm conviction in the public mind that Supreme Court proceedings themselves are, likewise, a forum in which political actors stage political battles. The Supreme Court would come to appear more political, not less, as its membership reliably shifts in unison with changes in political power.

If the solution is not to be found in the tenure of Supreme Court appointments, we must return to the method of appointment. For inspiration in discerning what method of appointment will promote public confidence in the political independence of the judiciary, I have turned to advances in medical science that have substantially enhanced human understanding and well-being since I last roamed this earth. I speak of the discoveries, new to me but well-known to all today, concerning viruses. Viruses are a source of common ills to the health of the body. Happily, nature has contrived to build a means of defense to viral attacks within the body. And modern science has learned how to prepare the body’s natural defenses for encounters with viruses, even before they have occurred. Through no small irony, the prevention of harm can be achieved by exposing the body to just the right amount of virus, so it is trained and prepared to beat back the invader when it arrives in full force. Exposure to the right amount of virus is called an immunization.

So I propose to immunize the judiciary from the virus, harmful to the body politic, of the public perception that Justices of the Supreme Court are reliably politically motivated. I propose to introduce just the right amount of politics, openly, into the method of appointment of Supreme Court Justices. The Constitution should be amended to require that the President nominate someone to the Supreme Court whose political affiliation we meaningfully know is opposed to that of the President:

The President, when selecting a nominee to the Supreme Court, must choose a current state or federal judge, or a current federal or state political elective officeholder or political appointee, who was most recently elected or appointed to government service by a member of the political party that received the second-highest number of electoral votes in the most recent presidential election, and who was never appointed or elected to any political office as a member of the President’s party.

As is clear from the text, it is my intention to immunize the entire judiciary by making the selection of only Supreme Court Justices openly political. The President would remain free to nominate partisans on his side to lower courts, including anyone learned in the law, practicing lawyers and law professors alike.

Before detailing the virtues of this proposal, candor requires me to acknowledge that the President’s learned Commission considered proposals that bear some similarity to mine. The Commission considered the proposal of Professors Epps and Sitaraman that the Court be made up of five Republicans, five Democrats, and five others chosen by those ten. Professor Segall has proposed an eight-member Court, evenly split with Republicans and Democrats. Each makes the composition of the Court openly political. But the Commission was unimpressed, observing that both would reinforce the public perception of Justices as political actors. On this point, I must agree with the Commission. Nothing in these openly political proposals would encourage Justices to behave less politically. To the contrary, these structures would encourage Justices to become especially reliable partisans. Nobody appointed through either of these proposals would understand their role as anything but a reliable partisan. And the public’s perception of judges as robed politicians would strengthen, not weaken.

I suggest to you that my proposal’s primary virtue is that the public could not expect that Justices who emerged through the proposed process would reliably reflect the values of any political constituency. The Commission erred by conflating party affiliation with the reliability of partisan outcomes. The perception of political reliability among judges is the problem, not mere party affiliation. Undermine the reliability of partisan outcomes, and the public will no longer expect that the Supreme Court has been constructed in the image of those with transient political power. Even when the perceived political balance of the Court is at stake, the fact that a President from one party has nominated someone from among his opponents will reduce the perception that we know that the President is using the appointment power to accomplish purely partisan political ends.

Many public benefits flow from this single source. The Supreme Court would surely become a matter of diminished concern in presidential or senatorial elections. The President will be in no position to use Supreme Court appointments to reward some portion of his own political constituency. That would restore the insulation from politics we want for our judicial officers, without sacrificing the public need for political accountability in their selection. We would no longer remain concerned that the Senate and the Presidency would have to be controlled by the same party in order to seat a new Justice. And there is reason to hope that this process could promote political cooperation beyond the selection of members of the Supreme Court. As you are no doubt aware, I am no stranger to the rough nature of partisan politics, to the passions it ignites, and to the seething hatred it directs against opponents. I have observed that still today, political opponents are thought not only to be wrong, but to be acting maliciously toward opponents and hostile to any understanding of the public good. It could only help soften the harsh blows of ordinary politics to make an institutionalized ritual of a closely watched moment where the leader of one party finds among members of the other party an individual worthy of the highest degree of public trust. It remains a question whether free societies can govern themselves without competing interests growing in animosity to the point that they rend the social bonds that are essential for a people to endure. Yet it remains a goal worth pursuing; indeed, it is a goal that can never be abandoned without abandoning the hope for human freedom itself.

It is also well-known that today individuals of high moral character and ability should and do tread cautiously into the Supreme Court nomination arena. Nominations to the Supreme Court have, with a frequency unhealthy to public confidence in the judiciary, become political spectacles commensurate with the perceived political stakes. The personal reputations of more than one nominee, previously unassailed, have been much maligned through that process. I am in no position to judge whether those previous occasions were fair or base political calumnies. But the current nomination process does not deter calumnies, which deters decent people from volunteering to serve and also weakens respect for the Supreme Court in the eyes of a substantial portion of the public. Under my reform, nominees would, no doubt, be scrutinized, but they would have less concern that unfair, politically driven character assaults would haunt them, or the Court as a whole, after they have been confirmed.

All of these benefits, enjoyed almost immediately upon enactment, might well be sufficient to warrant implementing the proposal. Yet there are also benefits that would not be felt until further into the future that, though more remote, are not less worthy of our attention.

Consider how many of the recent public controversies around the Supreme Court have been enflamed by the public perception of how closely the political balance of the Court stood. It is surely difficult today to imagine thinking about the Court without thinking about its political balance. Yet, after my reform has cycled through all the Justices, the idea of the “political balance” of the Court may well become only a matter for historical inquiry. Once the weight of the Court resides in those who were chosen because they are not reliable partisans, no one nomination or even series of nominations would be thought to rebalance the Court.

Consider also what incentives this proposal places among those who possess the ambition to rise to prominence worthy of a nomination on the Supreme Court. It would be in keeping with other of the most enduring and beneficial features of our constitutional design if this reform turns personal political ambition toward the public good.

How might one who seeks nomination to the Supreme Court get noticed under the reformed process? Surely it would not be through demonstrated partisan commitment. No President would choose the most consistent of his partisan opponents to serve in such a position. Ambition for a Supreme Court seat would encourage the display of other virtues. Such a person would not focus on familiarity and facility with the ideological commitments that correspond to partisan political outcomes. Instead, such a person might want to demonstrate a capacity for listening to and learning from and sometimes being persuaded by those in the opposition. Perhaps such a person would want to show the capacity for compromise. Not of the horse-trading variety ill-suited to the nature of the judicial task, but rather, a kind of principled compromise that respects the legitimacy of differing views regarding the state of the law in difficult cases without betraying one’s deepest commitments. Perhaps such a person would favor modest and slow change, adapted to circumstance and respectful of the need for stability in the law to promote both liberty and industry, rather than revolutionary upheavals. Perhaps ambition for this position, in this environment, would lead one to demonstrate caution and humility over boldness and confidence.

Also, it is my understanding that the most recently retired Supreme Court Justice, Stephen Breyer, served for almost thirty years. I am only dimly becoming aware of just how dramatically the nation and the world has changed in those thirty years. Knowing how rapidly the world changes, a President might well look for a nominee who has demonstrated curiosity and a rigorous work ethic. 

What emerges from imagining this world is a set of virtues that are not partisan. Such virtues are worth fostering and channeling into high public office.

It may have occurred to the attentive reader that I have delayed responding to the most obvious objection to my proposal. Would we not have a Supreme Court of inferior quality through my proposal? No President can be expected to grant both high honor and substantial power to the most capable of his opponents. It may also have occurred to that same reader that I need delay no longer. For the answer lies in reconsidering what we value among our most distinguished jurists.

No doubt, there are legal scholars and others who evaluate Justices based on their consistent fealty to some ideological approach to the Constitution. I am quickly learning about the various strands of thought that have emerged on this topic over the many decades of my absence. There appears to be no shortage of options and many volumes on the topic to consume. It is far beyond my purpose here to take sides in the debate among, to name just a few, “originalists” (in their various forms), and those who think the Constitution is decidedly libertarian in orientation, and those who believe our common law tradition empowers Justices to exercise considered judgment informed by precedent to incrementally adapt and update our foundational law, and those who would claim for the Supreme Court the authority to speak for the Constitution’s highest aspirations as they become revealed to society through time. But the partisans in that debate have, it seems, become partisans in the political debates about the Supreme Court. These theories of judging, however intricate, have become proxies for reliable political commitments. The quality of our judges cannot be measured according to any of them if we wish to maintain the political independence of our courts. 

But should we worry that a President will choose a plainly unqualified individual to serve on the Supreme Court? We may rest assured he will not. Surely, if the Senate be within the control of the President’s political opponents, those opponents would not lightly yield their opportunity to influence the Court by acquiescing to a weak nominee. And even if the President’s party also controls the Senate, we still need not withhold our assent to this reform based on this concern. For the President gains nothing from appointing an unqualified jurist to the Supreme Court. Such a weak jurist could not advance the President’s political goals or that of his party. The President’s reputation for judging character and his commitment to the public good remains a matter of close public scrutiny in connection with this nomination. Appointing an unqualified person to the Supreme Court would harm the President’s personal reputation while providing nothing in return. And even if a President were inclined to use the appointment power to weaken the judiciary as a whole and thereby weaken the Supreme Court’s authority to check the extravagant uses of executive power, the President would surely pause before acting on that impulse. A President cannot reliably predict that unqualified candidates will be more likely to defer to the political branches than challenge them. And all Presidents would no doubt anticipate a future where one of their political enemies rises to the Presidency. Whether even a politically aligned Senate would give its assent to a plainly weak nominee may well be doubted for those same reasons.

Instead, the President would be encouraged to choose an individual from among his political opponents who has demonstrated the nonpartisan virtues recited above. Such judges would, through good conduct, enhance the public’s perception of the President’s judgment for character and demonstrate the President’s devotion to the public good.

Through the emergence of those nonpartisan virtues we come to observe how this proposal immunizes the entire judiciary. Ambitious lower court judges, always seeking a higher appointment, would be encouraged to display those nonpartisan virtues in their own work. Even though my proposal does not prevent the President from appointing highly partisan lower court judges, such judges, if they demonstrate their partisan commitments from the bench, will have no chance of winning the trust of a future President from the other party. And the President might even conclude that some of his lower court appointments would be better used on those with a reasonable chance of winning nomination to the Supreme Court from his opponents. All of this would promote a broader judicial culture of less partisan decision-making.

It is, of course, imprudent to consider amending our Constitution only in light of this proposal’s potential benefits. We must scrutinize the proposal with the eye of a cynic; we must imagine how those with ambition for notoriety and power might scheme in light of our amendment to obtain partisan benefit at public cost. Would not each party seek to infect the other with a well-disguised partisan, who rises in rank and reputation among those who he actually despises, for the sole purpose of being named to the Supreme Court by his true political allies?

It will take little time, as we examine this prospect, to discover that its chances of success are so remote that it would be vain even to attempt. The plan would require, in the first instance, an individual of extraordinary patience, acting consistently over a number of years, contrary to his conscience and political preferences. He could not otherwise win the trust of his political opponents and win either elective or appointed office from them. He would suffer this long period of personal distress in the hopes that one of his close political confidants (surely he would not have his scheme widely known, even among the partisans he favors) rises in political power to the height of the Presidency, or a close advisor to the President, at a time when an opening emerges on the Supreme Court. He would also have to maintain the deception through the nomination process and its attendant scrutiny. And if he were to succeed at all of this, he would find himself but one among nine, with no like-minded friends to maneuver into control of the Court. The personal pain is surely too great for the vanishingly small chance of any reward.

The Commission raises a less nefarious concern that merits our consideration. The Commission considers it a matter of some importance that the nomination of Justices to the Supreme Court track reasonably the results of the national electoral process so that the Supreme Court does not become a repository of those opposed to the demonstrated will of the people. I confess that I am not convinced of how desirable is it for the Court to reflect the will of the people. The majority have no need of the courts to make their will known. But given our acceptance that the Court itself deploys some measure of will, let us accept the premise. We might then observe that my reform will not make matters any worse than at present. In partisan terms, six of nine current Justices were appointed by Republican presidents, even though Republicans have won only three of the last eight presidential elections and have won the national popular vote in only one of those last eight. The current system does not appear to track the will of the people with any degree of reliability. 

Though that might suffice, I will endeavor a more satisfying response. My proposal substantially reduces the risk of the Supreme Court drifting far from the will of the people. Those chosen through my process are especially unlikely to be highly ideologically motivated and willing to use the Supreme Court’s prestige and its rulings to explore the outer boundaries of the public’s views. As I’ve already noted, no President would choose an extremist from the other side. Under the current system, where partisan reliability has become a touchstone of appointment, the risk of driving a chasm between public opinion and the Supreme Court is far more substantial. Extremists chosen even from among the majority party do not well reflect the will of the people.

Other potential objections should not give us much pause. The Commission noted that an openly partisan proposal might depend on the (dubious) assumption of the permanence of our current two-party system. Indeed, where are today’s Federalists? But my proposal, though it assumes some party structure, does not rely on the current one. It requires the President to nominate someone from a party that finished second in the most recent presidential election. That is, someone from the most popular opposition party in the moment receives the commission. That allows for some fluidity in party composition and largely ensures against an accidental arrangement of ideological alignment between a President and a nominee.

There is the question of when to make such a momentous change. Maybe you think this idea a worthy proposal, but that it’s unfair to adopt now. The Republicans have a clear Court majority, and why should the Democrats surrender the ability to seize control of the Court in the event that they hold the Presidency and the Senate for a sufficient number of years to rebalance the Court? Such short-term thinking will always frustrate much-needed reform. And there is little reason for confidence that one party will prevail electorally for the length of time it would take to achieve that goal. But the most important response to that objection is that it merely seeks to continue, forever, the erosion of the political independence of the courts. That might seem more acceptable when the Court’s partisanship is aligned with your own. But the dangers to the public good, some of them as I’ve already noted quite urgently presented, far outweigh the short-term partisan benefits.

Still, if it were necessary or thought desirable, the constitutional amendment I propose could include a forced retirement process for all of the current Justices over a number of presidential election cycles after it takes effect. That is, the amendment could initiate and accelerate the transformative process it is designed to bring about. 

Finally, I have learned enough history to recognize that reasonable people may conclude that my concern is rooted in only relatively recent events, and that I may be (dangerously) proposing a permanent “solution” to a passing “problem.” Justices have faced political controversy in the past, and they have, when circumstances demanded, altered their behavior to avoid rising political controversy. It always remains possible to hope that the Justices themselves will, through their votes and rulings in high profile cases, undermine the perception of political reliability that is at the heart of the current predicament.

But the pressures on politicians to appoint Justices who will demonstrate political reliability remains strong and continues only to grow. And, whenever we speak of constitutional design, we do so because it is unwise to rely on the personal virtue of our leaders to ensure good government. My compatriots did not design our Constitution with the expectation of political parties dominating outcomes across political institutions. Senators, we believed, would guard the prerogatives and privileges of the Senate above all else. That has not proved to be the case. We should create institutional incentives to produce better outcomes. We should institutionalize a national practice of crossing partisan lines and regularly demonstrating that the Supreme Court is and must be the politically nonpartisan voice of the Constitution.   

I do not fancy my proposal perfect. No institutional arrangement will grant the attentive citizen an easy, long rest. The vain, the ambitious, and the opportunists among us will always scheme late into the night for personal gain over the public good. But when we confront oncoming institutional crises, we cannot let the unattainable perfect be the enemy of the good. When those of good faith object to my proposal—and any proposal to amend our rightly revered Constitution must survive the test of good faith and wise objections—ask yourself, attentive citizen: am I being asked to fear anything I don’t already fear, and fear with great intensity, from present circumstances? And when evaluating proposals, including holding to the status quo, remain vigilant for what role the proponent imagines for our treasured tradition of a politically independent judiciary. I hold fast to the proposition that public confidence in the political independence of judicial decrees is as essential to the next two hundred years of freedom and prosperity as it was to the last.

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