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Analysis

Saving the Supreme Court

What’s needed is to make the court more democratically accountable and to end strategic retirements. Here’s how.

This piece was origin­ally published by Demo­cracy.

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

Fixing these flaws requires a consti­tu­tional amend­ment with two related provi­sions. First, Supreme Court appoint­ments should be regu­lar. Every pres­id­ent, in the first and third year of each term, would nomin­ate a Justice, subject to Senate confirm­a­tion. Second, each new Supreme Court justice would serve a single 18-year term — still “during good beha­vior.” (This term limit would not apply to current justices.) And if a new justice did not serve a full term due to retire­ment or death, his or her successor would be nomin­ated only to complete the remainder of the 18-year term. The successor would not get a new 18-year term.

Regu­lar appoint­ments work only if accom­pan­ied by term limits — which have inde­pend­ent bene­fits as well. Without a term limit, regu­lar appoint­ments, coupled with increas­ing longev­ity, would lead to a court that was huge. Moreover, an 18-year limit fits with a 9-member court. Even­tu­ally, two justices will end their 18-year term in each four-year pres­id­en­tial term, just as two new justices are appoin­ted.

These two amend­ments are suppor­ted by a close analysis of what the framers did — and, more import­antly, did not do — in formu­lat­ing the Consti­tu­tion. Moreover, the amend­ments are neces­sary because of how the Supreme Court and the coun­try have changed since the found­ing. An appoint­ment system designed for a court that was origin­ally char­ac­ter­ized as “feeble” does not fit a court that has become immensely power­ful.

A differ­ent land­scape

At the Consti­tu­tional Conven­tion, the framers emphas­ized the import­ance of judi­cial inde­pend­ence, not want­ing the justices to be domin­ated by the other branches of govern­ment. (Hence, the Consti­tu­tion’s “good beha­vior” clause and the ban on Congress redu­cing sitting justices’ pay.) But little atten­tion was paid to the system by which justices would be appoin­ted. Indeed, the proposed system that was adop­ted — nomin­a­tion by a pres­id­ent subject to the advice and consent of the Senate — was included in the Proposal of the Commit­tee on Unfin­ished Parts, an omni­bus proposal for all pres­id­en­tial appoint­ments. The commit­tee did not explain its proposal, and the conven­tion as a whole adop­ted the proposal without any discus­sion. Alex­an­der Hamilton did not address this nomin­a­tion system in the Feder­al­ist Papersas part of the rati­fic­a­tion debates. He did, however, defend life tenure for justices — no surprise since at the Consti­tu­tional Conven­tion, Hamilton had urged life tenure for pres­id­ents and for members of the Senate. But Hamilton suppor­ted life tenure for justices because the judi­ciary was “in contin­ued jeop­ardy of being over­powered, awed or influ­enced” by Congress and the pres­id­ent. Indeed, Hamilton conten­ded the judi­ciary needed special protec­tion because of its “natural feeble­ness,” in part because it had “no influ­ence over the sword or the purse.” But nobody now considers the Supreme Court to be feeble. Nor would anyone now adopt the critique of John Jay, the first chief justice, that the court lacked “energy, weight, and dignity.”

Beyond assert­ing that the court would be feeble, Hamilton gave a second “weighty reason for the perman­ency” of judi­cial offices: Only a “few men” would have “suffi­cient skill.” In addi­tion, a “tempor­ary dura­tion in office” would discour­age those few fit char­ac­ters “from quit­ting a lucrat­ive line of prac­tice” (the law), to which they might fear being too old to return. The result would be to “throw the admin­is­tra­tion of justice into hands less able and less well qual­i­fied to conduct it with util­ity and dignity.” (When Hamilton wrote, there were few lawyers and far fewer law schools. As our popu­la­tion has expan­ded by 77 times from the first census in 1790 to the most recent census in 2010, the propor­tion of lawyers has also grown substan­tially. For example, in Massachu­setts in 1790, there was one lawyer for every 4,240 resid­ents. Fifty years later, it was one for every 1,150 resid­ents. And by 2019, the Amer­ican Bar Asso­ci­ation’s tally of nation­ally active lawyers was one for every 243 people.)

There was early evid­ence to support Hamilton’s concerns and Jay’s dispar­age­ment of the court. Some justices quickly left the court, or publicly disdained its role. It decided far fewer cases than today, only 60 in its first 10 years. And, in the 70 years before the Civil War, the Supreme Court held only two federal stat­utes uncon­sti­tu­tional. Even after Marbury v. Madison, where the court ruled it had the power to declare federal stat­utes uncon­sti­tu­tional, the court held only one other federal law uncon­sti­tu­tional before the end of the Civil War. But that case was Dred Scott, which, as we shall see, was one of the trig­gers for the Civil War.

But, start­ing after the Civil War when govern­ments grew, the economy exploded, and new rights were claimed and created, the court’s powers stead­ily increased. Now the court regu­larly decides what govern­ments can and cannot do. The court regu­larly affects the lives of the people, such as determ­in­ing where they can go to school, and intim­ate issues such as whom they can marry, and their repro­duct­ive choices. The court regu­larly influ­ences the polit­ical system, and some­times decides who controls it, includ­ing determ­in­ing who was elec­ted as pres­id­ent in 2000 and how much money can be spent in elec­tions. Changes in the coun­try have also rendered obsol­ete Hamilton’s second argu­ment favor­ing the current system. There are now plenty of people able and will­ing to serve on the court. And they are not only white men. Moreover, the job has become much more desir­able. Justices’ finan­cial secur­ity has been protec­ted through pensions, and their work­ing lives have improved. For example, even though justices today decide about one-quarter the number of cases the court decided in the latter part of the 19th century, the clerks support­ing each justice have increased from one at the end of the 19th century to four today. So today, for many reas­ons, there certainly is no short­age of highly qual­i­fied people who would be proud to serve as a Supreme Court justice.

There has also been a massive change in the scope and size of govern­ment. When George Wash­ing­ton became pres­id­ent, more people worked at his Virginia plant­a­tion than in the entire federal govern­ment. Amer­ica was smal­ler, less complex, less inter­con­nec­ted, less diverse, less free, less econom­ic­ally vigor­ous. As the nation’s popu­la­tion and territ­ory multi­plied, and the economy grew and changed, laws govern­ing the coun­try exploded. People today expect more of govern­ment. Indi­vidu­als have more rights, and govern­ments at all levels take many more actions impact­ing those rights, as well as the nation’s economy and culture. All this leads to more cases and contro­ver­sies for the court to resolve.

Since Wash­ing­ton’s time, the court has moved from the margins of our every­day lives to decid­ing crucial issues affect­ing the coun­try. Truly import­ant decisions — such as the shame­ful 1857 Dred Scott decision, in which the court ruled that black people could never be citizens and that it was uncon­sti­tu­tional to ban slavery in any state — were rare in the repub­lic’s first decades. Since Dred Scott, the court has some­times been a force for progress on race, and some­times a force against. As the economy expan­ded in the late 19th century, so too did regu­la­tion and the accom­pa­ny­ing legal battles decided by the court. In the 20th century, the court began play­ing a crucial role on social issues, and also exten­ded its power to decide how the Amer­ican polit­ical system oper­ates. In all these areas, the court’s actions have some­times pleased conser­vat­ives and frus­trated liber­als. And, at other times, the court’s actions have pleased liber­als and frus­trated conser­vat­ives. But the consist­ent story has been that the court’s power, as well as its inde­pend­ence, has increased.

To appre­ci­ate the reach of today’s Supreme Court, consider just a few ques­tions decided in the 21st century. Who was elec­ted pres­id­ent. How much money can be spent in elec­tions and by whom. Who can marry whom. The scope of the right to bear arms. The legit­im­acy of affirm­at­ive action in univer­sit­ies. The legal­ity of the Afford­able Care Act. The uncon­sti­tu­tion­al­ity of part of the Voting Rights Act that had protec­ted minor­ity voting rights for decades. That the court cannot touch polit­ical gerry­man­der­ing. Moreover, all these land­mark cases were decided by a 5–4 vote, dram­at­iz­ing the power held by each indi­vidual justice, a power also shown by the fact that, at times, the dissent of just one justice even­tu­ally became the major­ity view.

With the court decid­ing so many consequen­tial ques­tions, who gets appoin­ted to the court, and how often appoint­ments are made, is of great import­ance not only to consti­tu­tional schol­ars, but to the public as well. Not surpris­ingly, given the stakes, reac­tions to the court have become much more polit­ical and partisan. For a while, both Demo­crats and Repub­lic­ans at times echoed Frank­lin Roosevelt’s rather tepid critique that justices should “act as justices and not as legis­lat­ors.” But more recently, parties and pres­id­en­tial candid­ates have expressly prom­ised to appoint justices who would uphold, or strike down, partic­u­lar decisions such as Roe v. Wadeor Citizens United. Media cover­age has also become much more politi­cized. In the 1950s, for example, articles in the New York Times used the terms “liberal justices” or “conser­vat­ive justices” only eight times. From 2000 to 2010, the paper used those terms 160 times.

As rhet­oric surround­ing the court has polar­ized, confirm­a­tions of justices them­selves have become more partisan and, in our century, every nomin­a­tion has been hotly contested. From the start, there were occa­sional contro­ver­sies. For example, Wash­ing­ton’s nomin­a­tion of John Rutledge as his second chief justice was defeated because senat­ors disagreed with Rutledge’s posi­tion on a treaty with Great Britain. There­after, from time to time, there contin­ued to be bitter fights over partic­u­lar nomin­a­tions, some­times based on char­ac­ter or compet­ence, and some­times center­ing on a point of view. Nonethe­less, until our time, these fights were rare. Indeed, the Senate once approved most justices by a “voice vote,” when no senator pushed for a recor­ded vote and there was no mean­ing­ful contro­versy. In the era from George Wash­ing­ton through Abra­ham Lincoln, 38 of 48 success­ful Supreme Court nomin­ees were approved by voice vote. From Ulysses Grant through Lyndon John­son, it was 41 of 67. Thus, over the nation’s first 18 decades, two-thirds of success­ful nomin­a­tions were approved by voice vote. But, in the 50 years after Lyndon John­son’s pres­id­ency, there have been zero voice vote approvals.

Until the 21st century, moreover, bitter fights over nomin­ees were always followed by a calm period, includ­ing over­whelm­ing, some­times unan­im­ous, bipar­tisan support for new nomin­ees. This was true for three Nixon nomin­ees and one Ford nominee after the rejec­tion of Nixon’s nomin­ees Clem­ent Hayns­worth and G. Harrold Carswell; for Reagan’s nominee Anthony Kennedy after the Robert Bork defeat; and for Clin­ton’s two nomin­ees after the bitter fight over H.W. Bush’s nomin­a­tion of Clar­ence Thomas. In the 21st century, however, for the first time in history, every nomin­a­tion that has reached the Senate (there have been six) has been an ideo­lo­gical battle­field with sharp polit­ical divi­sions and numer­ous “no” votes.

When the court had less power than today, pres­id­ents were also less rigid in propos­ing justices who fit an ideo­lo­gical profile. For example, Woodrow Wilson’s first two nomin­ees were James McReyn­olds, a conser­vat­ive, a racist, and an anti-Semite, and Louis Bran­deis, a progress­ive and the court’s first Jewish justice. Pres­id­ents Hoover, Truman, Eisen­hower, and Kennedy also nomin­ated an ideo­lo­gical mix. Today, however, pres­id­ents run prom­ising to nomin­ate justices who will hew to a rigid ideo­lo­gical, partisan view.

Proced­ural changes relat­ing to the Senate have also contrib­uted to increases in contro­versy and partis­an­ship. The Seven­teenth Amend­ment, rati­fied in 1913, to provide that senat­ors would be elec­ted by the people (instead of state legis­latures), and the Senate chan­ging its rules in 1929 to make all confirm­a­tion hear­ings public, made senat­ors more concerned about the impact of confirm­a­tion hear­ings on their constitu­ents. And then in 2013, the Senate, under Demo­crat Harry Reid, elim­in­ated the fili­buster for all federal judges except Supreme Court nomin­ees. In 2017, Repub­lican Mitch McCon­nell retali­ated by elim­in­at­ing the fili­buster for Supreme Court justices. Fili­busters (or the threat of fili­busters), which required 60 votes to over­come, had perhaps been a force against overly partisan nomin­a­tions, since to get to 60, a nominee usually had to win some votes of senat­ors from the other party.

Public interest groups have also played a role in tension around Supreme Court nomin­a­tions. In 1930, the Repub­lican-controlled Senate, on a bipar­tisan basis, rejec­ted Repub­lican Pres­id­ent Herbert Hoover’s nomin­a­tion of John Parker, who had initially been considered a sure shot. Lobby­ing by the AFL and the NAACP was crucial to Park­er’s defeat. In the Bork contro­versy, oppos­i­tion non-profit groups outmatched his support­ers. Since then, public interest groups have played an increas­ingly big role on both sides, on all nomin­a­tions. Indeed, in 2016, candid­ate Trump commit­ted to select his nomin­ees from lists provided from a conser­vat­ive interest group. As pres­id­ent, he picked his two nomin­ees — Neil Gorsuch and Brett Kavanaugh — from those lists.

More power­ful. More divided. More contro­ver­sial. None of these things is neces­sar­ily bad. But when some pres­id­ents appoint an outsized number of justices, when justices far outlive the elec­ted offi­cials whose views they once reflec­ted, and when justices them­selves play a role in determ­in­ing the ideo­logy of their successor, it is not surpris­ing that more people ques­tion the court’s demo­cratic legit­im­acy.

There is a connec­tion between that frus­tra­tion and how we have been appoint­ing justices to the Supreme Court. First, as mentioned, because pres­id­ents can nomin­ate a justice only when one retires or dies, some pres­id­ents get many appoint­ments, others few, or occa­sion­ally none. FDR appoin­ted eight justices in less than six years during his second and third terms. William Howard Taft and Warren G. Hard­ing appoin­ted nine in their six and a half years in the Oval Office. But Woodrow Wilson, in the eight years of his two inter­ven­ing terms, appoin­ted only three. Earlier, in their combined 12 years as pres­id­ent in the mid-19th century, Andrew Jack­son and Martin Van Buren (who had been Jack­son’s vice pres­id­ent) appoin­ted eight justices. But during the follow­ing 20 years, the next seven pres­id­ents appoin­ted only six. There are many other examples of such uneven­ness. In addi­tion to the unfair­ness of these wild swings, the random­ness ratchets up the stakes, and the contro­versy, for every Supreme Court nomin­a­tion.

Second, while vacan­cies have always been unpre­dict­able, they have also become increas­ingly rare. Because justices now serve longer on aver­age, there are signi­fic­antly fewer oppor­tun­it­ies for appoint­ments. For 125 years start­ing in 1850, after the court gener­ally had nine members, an aver­age of 14 justices was appoin­ted each quarter century. But since 1975, that aver­age has dropped to eight.

The uneven­ness, and the increas­ing rarity of appoint­ments, fray the link between court and coun­try, redu­cing the inten­ded legit­im­acy of the Consti­tu­tion’s court-appoint­ment system where offi­cials elec­ted to repres­ent the people’s interest — the pres­id­ent and the Senate — are meant to “demo­crat­ic­ally screen” justices.

Third, life­time tenure now increas­ingly leads to gener­a­tions of service. In the 19th century, death rather than retire­ment was the normal end of a justice’s service. Of the 38 justices who left the court in the 19th century, 27 died, and only 11 resigned. That ratio switched in the 20th century. Indeed, after 1950, of 26 justices who left the court, only four did so by death. This shift helped open the door to the burgeon­ing “stra­tegic retire­ment” prac­tice of justices acting polit­ic­ally to time their retire­ments so that a pres­id­ent who shares their legal-policy pref­er­ences gets to propose their successor.

And unlike when Hamilton foresaw that only a few “men” would consider join­ing the court, today in our much more popu­lous coun­try, there are many qual­i­fied lawyers, and they are no longer only white, Prot­est­ant men. However, because of the current system of increas­ingly rare — and random — vacan­cies, and because of increased polar­iz­a­tion, today the court is becom­ing less diverse in terms of exper­i­ence. For decades, almost every new justice — all except for Sandra Day O’Con­nor and Elena Kagan — has come from a job on a circuit court of appeals. Not one since O’Con­nor had been an elec­ted offi­cial. This is a huge change from George Wash­ing­ton’s appointees, all of whom had polit­ical exper­i­ence, as well as from the many polit­ical jobs that had been held by the great Chief Justice John Marshall, and from the varied exper­i­ence of the justices who decided Brown v. Board of Educa­tion.

The change to rely­ing on the courts of appeals to feed the Supreme Court is part of a trend to appoint ideo­lo­gic­ally reli­able justices. This trend is one of many reas­ons why the wide swings in appoint­ment oppor­tun­it­ies from one pres­id­ent to another, coupled with the over­all reduc­tion in appoint­ment oppor­tun­it­ies, adds to nomin­a­tion anxi­ety, and increases polit­ical char­ac­ter­iz­a­tions of the court.

Unlike much of the Consti­tu­tion, our Supreme Court judi­cial appoint­ment and tenure system has not been emulated at home or abroad. Of the 50 states, none uses the same system. And no other demo­cratic nation follows our model. Moreover, the Consti­tu­tion has been amended to address how pres­id­ents and senat­ors are elec­ted and to limit how long a pres­id­ent can serve. This confirms that the selec­tion method, and the terms, of justices are appro­pri­ate subjects to explore.

Amend­ing the Consti­tu­tion

Contin­ued reli­ance on a 232-year-old system for appoint­ing justices harms the court and the coun­try. We need a new system that cures the harms but preserves judi­cial inde­pend­ence. This requires a consti­tu­tional amend­ment. Consti­tu­tional amend­ments must clear a high hurdle — approval by two-thirds of both the Senate and the House, and then by three-quar­ters of the state legis­latures. Almost 12,000 amend­ments have been proposed. Only 27 adop­ted. But, as James Madison taught, amend­ments will be “sugges­ted by exper­i­ence” to address “discovered faults.” Our exper­i­ence has demon­strated the faults of the appoint­ment system for Supreme Court justices.

So much has changed since the found­ing. No longer can you imagine a Chief Justice saying the court lacked “energy, weight, and dignity.” Nobody today would join Hamilton in describ­ing the court as “feeble.” Gone are the days when most Supreme Court nomin­a­tions were promptly approved by a “voice vote.” Gone are the days when court decisions were usually unan­im­ous.

Instead of a consti­tu­tional amend­ment, some now suggest “pack­ing” the court, perhaps to avenge the Senate Repub­lic­ans’ refusal to grant Merrick Garland a hear­ing. But, even if this were polit­ic­ally possible (it requires control of the pres­id­ency and both houses of Congress), it is a short-term partisan legis­lat­ive step, not a bipar­tisan consti­tu­tional solu­tion. It cures noth­ing. Instead, it would exacer­bate the court’s politi­ciz­a­tion. Moreover, the history of court pack­ing is not glit­ter­ing. The most famous attempt, Frank­lin Roosevelt’s in 1937, was a dismal fail­ure. Despite FDR having won 98.4 percent of the Elect­oral College vote in 1936, his plan was soundly defeated — opposed in Congress by both Demo­crats and Repub­lic­ans, and even by the justices who had been on FDR’s side in cases address­ing the New Deal.

There are bits of it in earlier history. In 1801, the lame-duck John Adams Congress “unpacked” the court from six to five members to limit Pres­id­ent-elect Jeffer­son’s oppor­tun­it­ies to appoint justices. When they took office, the Jeffer­so­ni­ans repealed the change. Later, in 1861, the Civil War Congress increased the court to 10 members to give Lincoln more appoint­ments. (After Lincoln was assas­sin­ated, Congress reduced the court to seven to prevent Andrew John­son from having any appoint­ment oppor­tun­it­ies. The number was restored to nine when Ulysses Grant became pres­id­ent.)

Noth­ing in our nation’s history supports court pack­ing today, however. Any possible court pack­ing would be correctly perceived as a partisan power grab. And when party fortunes change, the party that lost the first pack­ing vote would proceed to pack the court in its favor.

In any event, to address funda­mental prob­lems — those that fray the court’s link to our demo­cracy, and that add to the polar­iz­a­tion of the court — we need a consti­tu­tional amend­ment. Given the high hurdles for amend­ments, this cannot be achieved without bipar­tisan support. This should be achiev­able. In the past, both parties have been harmed at differ­ent times by the bunch­ing of Supreme Court appoint­ments. And at differ­ent times in the future, both parties will be harmed again. Both parties are also being harmed by the over­all reduc­tion in vacan­cies.

But the proposed amend­ment is neither Repub­lican nor Demo­crat. It is rooted in the most funda­mental Amer­ican values. The founder of the Feder­al­ist Soci­ety, Steven Calabresi, as well as liberal icon Sanford Levin­son, have writ­ten in favor of similar consti­tu­tional changes. Both parties under­stand the import­ance of a regu­lar oppor­tun­ity to connect the court to the coun­try. Both parties would bene­fit from a return to the norms of appoint­ments from the shrink­ing numbers start­ing in 1975. While each party has obtained short-term advant­ages from time to time from stra­tegic retire­ments, neither party can endorse a system where justices them­selves can make polit­ical decisions on when to retire so as to help mold the court’s future. Simil­arly, while both parties can now increas­ingly see bene­fits in appoint­ing younger justices — with a bias against appoint­ing justices over 60 — neither party has a prin­cipled reason to support a system that creates that bias.

The 18-year term limit should not apply to current justices. To do so would not seem fair. (As a point of preced­ent, the Twenty-Second Amend­ment limit­ing the pres­id­ent to two terms did not apply to Harry Truman, the pres­id­ent in office when the Amend­ment was proposed to Congress.) So for a while, the court will have more than nine members, and at times an even number. But Supreme Courts in many nations are larger than ours. And, at the found­ing, the court had six members; under Pres­id­ent Lincoln it had ten; and after Justice Scali­a’s death in 2016, it had eight. (Indeed, an even number might well encour­age more consensus opin­ions.)

However one feels about either the court’s histor­ical, or current, ideo­lo­gical direc­tion, it should not affect one’s support for the proposed consti­tu­tional amend­ment. The court will continue to evolve some­times in a liberal and some­times in a conser­vat­ive direc­tion. All believ­ers in equity and in there being a connec­tion between the court and the coun­try — where a poten­tial justice is “screened by the demo­cracy” — should decry the current system of wildly uneven, and increas­ingly rare numbers of appoint­ments. All should welcome regu­lar appoint­ments as more consist­ent with our consti­tu­tional vision. All should recog­nize that bunch­ing of appoint­ments and gaps in appoint­ments have hurt both parties in the past, and will hurt both parties in the future unless the Consti­tu­tion is amended. And all should welcome an end to stra­tegic retire­ment decisions and to the polit­ical appear­ance of such decisions.

So much that has changed about court and coun­try drives the need for a consti­tu­tional amend­ment. But our most funda­mental ideals have not changed. We remain a nation based upon the truth that, in the words of the Declar­a­tion, “Govern­ments deriv[e] their just powers from the consent of the governed.” We remain a nation that, in the words of the Preamble to the Consti­tu­tion, was “ordain[ed] and estab­lish[ed]” by “We the People.” And we continue to strive to assure that, in the words of the Gettys­burg Address, “[T]his nation, under God, shall have a new birth of free­dom — and that govern­ment of the people, by the people, for the people shall not perish from the earth.”

Adop­tion of a consti­tu­tional amend­ment to make the court more demo­crat­ic­ally account­able through regu­lar appoint­ments, a return to the tradi­tion­ally larger number of appoint­ments, and the end of stra­tegic retire­ments, will be a next step on this nation’s jour­ney to try to live up to these last­ing truths.