The national opinion poll found that 63% of adults supported term or age limits for Supreme Court justices. Another 22% said they opposed any limits and the rest did not express an opinion. The news comes against the backdrop of proposed legislation by House Democrats to expand the number of justices on the Supreme Court. Given Democrats' control of the White House and Senate, the legislation could allow the party to supersede the court's current conservative majority by "packing" the court with liberal justices.
Alan Dershowitz, Harvard Law professor emeritus and Trump impeachment-defence veteran, reflects on whether the Supreme Court can lose its independence, and what might be the consequences of the Supreme Court reform for the two-party system in the US.
Sputnik: Republicans have slammed the proposed legislation as an attempt to deprive the Supreme Court of its independence. What's behind this legislation and what's your take on the GOP's opposition to it?
Alan Dershowitz: Well, the Democrats clearly are just trying to take over the Supreme Court. They want to get enough justices to guarantee that they will always have a majority. They want to add five justices, four under the new legislation, and then they want to pressure Justice Breyer to resign from the Supreme Court so that President Biden can appoint yet a fifth new person to the Supreme Court. That would give them an assured majority over the next many years and would politicise the Supreme Court and turn it into yet another political branch of the government, which is the last thing American democracy needs.
I think the Supreme Court would lose its independence, if every time a party got control of the Senate and the presidency, they could appoint new justices and simply determine how the Supreme Court votes on controversial cases. That's the goal. The goal is to turn the Supreme Court into an institution controlled by one party. Each party would like to do that. And Americans who care about liberty and checks and balances, the separation of powers have to resist that, whether we're Democrats like I am or Republicans.
Sputnik: The Democratic Party already has full control over the White House and Congress, while the Supreme Court seems to be the Republicans' last stronghold. What might be the consequences of the Supreme Court reform for the two-party system in the US?
Alan Dershowitz: Well, I think it would endanger our system of checks and balances. The Supreme Court was set up as a non-elected, non-partisan, non-political branch of the government to check on the excesses of the elected branches. And if every time there's an election, justices can be added to the Supreme Court, it would end their proper role as a check and balance on the elected branches of government and would give total control of the three branches to one party.
Sputnik: How would potential Supreme Court packing affect the Republican Party's chances of winning back power from the Dems?
Alan Dershowitz: Well, elections aren't really determined by the Supreme Court, although the Supreme Court does have an impact on elections as Bush versus Gore in the year 2000 demonstrates. But if the Republicans were to gain control of the presidency and of the Senate and House in 2024, they could add even more justices to the Supreme Court. And we could have twenty-five, thirty justices. Every time a new party gains control over the two branches, they would increase their control over the third branch and that would undercut the Constitution.
Sputnik: A number of Democrats have called on Stephen Breyer, the most senior member of the US Supreme Court's liberal wing, who warned against partisan proposals to expand the court, to step down in order to give Joe Biden an opportunity to pick his own nominee. Why is it wrong to think of the court as another political institution, and why is structural alteration, motivated by perceived political influence, likely to erode trust in the court?
Alan Dershowitz: Well, I've known Steve Breyer for half a century. We clerked for the same justice on the Supreme Court. We served on the faculty of Harvard Law School for a quarter of a century. Steve's tough. He's not going to submit to the pressures, but he's also somebody who plainly would like to see himself replaced, if possible, by someone who shares his ideological and constitutional views. So I don't think he's going to resign immediately, but I suspect that he may well resign while Biden is still the president. First of all, he's eighty-two and a half years old. So the time may be ripe for his retiring, but I don't think he's going to want to be perceived as having left the Supreme Court under the pressure of partisan advocates.
Sputnik: Well if we are talking about eroding trust in the court, what’s your take on that?
Alan Dershowitz: Well, I think trust in the Supreme Court is eroding, and for good reason. The Supreme Court is becoming more political and more partisan. And as it moves in that direction, there will be more and more erosion of trust in the Supreme Court. Recently, the Supreme Court rebuffed President Trump when he was the president, and he was rebuffed by people he himself appointed to the court. That was a good thing. It showed the neutrality of the Supreme Court. But the Democrats who were pushing to pack the Supreme Court don't want a neutral, objective Supreme Court. They want a Supreme Court that does their bidding, their way, now.
The Supreme Court has always been a political institution in some ways: the Dred Scott decision, the Civil War, McCarthyism. But it is becoming more and more political and more and more partisan as the efforts to stack the court, to rob the president of nominations, the Merrick Garland fiasco, when President Obama was not permitted to name a nominee to the Supreme Court, both parties are clearly at fault. And we, the American people, have to stand up against the extremists in both parties.
