Skip to main content

Supreme flaws: Three ways to fix the Supreme Court

By Eric Segall, Special to CNN
September 20, 2013 -- Updated 1534 GMT (2334 HKT)
The justices of the U.S. Supreme Court sit for their official photograph on October 8, 2010, at the Supreme Court. Front row, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Back row, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr. and Elena Kagan. The justices of the U.S. Supreme Court sit for their official photograph on October 8, 2010, at the Supreme Court. Front row, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Back row, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr. and Elena Kagan.
HIDE CAPTION
Today's Supreme Court
John G. Roberts
Antonin Scalia
Anthony M. Kennedy
Clarence Thomas
Ruth Bader Ginsburg
Stephen G. Breyer
Samuel A. Alito Jr.
Sonia Sotomayor
Elena Kagan
<<
<
1
2
3
4
5
6
7
8
9
10
>
>>
STORY HIGHLIGHTS
  • Eric Segall: Life tenure allows justices to serve past the point of competence
  • Segall: Court should follow lead of many states and allow cameras in courtroom
  • The Supreme Court nomination process is a farce, he adds

Editor's note: Eric Segall is the Kathryn and Lawrence Ashe Professor of Law at Georgia State University College of Law. He has written more than 25 law review articles on the Supreme Court and the Constitution as well as numerous op-eds and essays. He is the author of "Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges." He tweets regularly at @espinsegall.

(CNN) -- Less than three months ago, the Supreme Court of the United States handed down eagerly awaited rulings on same-sex marriage, voting rights and affirmative action. Next month, the court will begin its new term and likely deal with controversial issues such as abortion, campaign finance reform and the separation of church and state.

When the court is in the middle of a term, it is easy to focus on hard legal questions, the legal views of individual justices and the consequences of landmark decisions. Now is a good time, when the court is in recess, to take a step back and look at the institution itself.

A lifetime is too long

First, our Supreme Court justices are the only judges in the world who sit on a country's highest court and have life tenure. Because the president nominates the justices and the Senate confirms them, the American people do not elect the justices and cannot vote them out of office. In light of the crucial role the court plays across the spectrum of social, legal and political issues, the question of how long our justices serve should be re-examined.

Supreme Court justices often serve more than 25 years and beyond the time they are still fit to perform their duties. For example, according to renown author David Garrow, both Justices William O. Douglas and Thurgood Marshall remained on the bench well after their skills had significantly diminished beyond the point of competence.

The usual justification for life tenure is that the justices need to be independent of the other branches of the government to adequately perform their duties. This need for independence is real and compelling, but there are other ways to achieve that goal.

Other countries use fixed terms, retirement ages or a combination of the two to achieve the necessary independence. There simply is no persuasive reason to allow governmental officials who have virtually unreviewable power to hold their offices for life.

Few witnesses to history

The second aspect of our Supreme Court that needs to be changed is the lack of television coverage of oral arguments and decision announcements. What a shame that during the last week of June when the court handed down and read from the bench numerous important decisions -- including the overturning of the Defense of Marriage Act and the formula in Section 5 of the Voting Rights Act -- the American people had to hear the news indirectly from media personalities instead of the justices.

Hollingsworth v. Perry (2013): The Supreme Court dismissed an appeal over California's Proposition 8 on jurisdictional grounds. The voter-approved ballot measure barring same-sex marriage was not defended by state officials, but rather a private party. This ruling cleared the way for same-sex marriage in California to resume, but left open-ended the legal language of 35 other states barring same-sex marriage. Take a look at other important cases decided by the high court. Hollingsworth v. Perry (2013): The Supreme Court dismissed an appeal over California's Proposition 8 on jurisdictional grounds. The voter-approved ballot measure barring same-sex marriage was not defended by state officials, but rather a private party. This ruling cleared the way for same-sex marriage in California to resume, but left open-ended the legal language of 35 other states barring same-sex marriage. Take a look at other important cases decided by the high court.
Supreme Court cases that changed America
HIDE CAPTION
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
>
>>
Photos: Supreme Court cases that changed America Photos: Supreme Court cases that changed America

Similarly in 2012, when the court held three days of oral arguments on the president's most important piece of legislation, the Affordable Care Act, the public should have been able to witness those arguments just like the lucky few who happened to be in the courtroom.

Moreover, it is close to a tragedy that future generations will have absolutely no video record of the court's arguments or decisions in these landmark cases. It would be an invaluable learning tool if young Americans today could see the oral arguments in Brown v. Board of Education or Roe v. Wade.

More than 30 state supreme courts allow cameras in the courtroom with great success. Supreme Court Justices John Roberts and Anthony Kennedy have suggested that the presence of television would lead to grandstanding by lawyers and maybe even the justices themselves, but the experiences in state courts demonstrate such concerns are greatly exaggerated.

When Arkansas was considering placing cameras in the courtroom, Justice Robert L. Brown conducted a survey and found that "state supreme courts have blazed a significant technological trail. ... The public's response, according to those state supreme courts that provide those video broadcasts, border[ed] on the exuberant. . . [N]o state that currently provides video of its oral arguments cites grandstanding as a problem."

Arkansas has joined the majority of states that allow cameras in their courtrooms. There is simply no good reason for the Supreme Court not to do exactly the same thing.

A joke of a job interview

Summer Stories Wrap: U.S. Supreme Court

Finally, we have to do something about the national farce that is our Supreme Court nomination process.

The sad spectacle of senators asking questions drafted by their staffs and then allowing the nominees to duck them should give way to serious conversations about the nominees' views so that the American people can participate more fully in the confirmation process. As almost everyone now knows, the justices have enormous discretion to decide cases in accordance with their personal and political value systems.

The differences between Justices Antonin Scalia and Ruth Bader Ginsburg on most constitutional questions have nothing to do with legal interpretation and everything to do with their different backgrounds, experiences and values.

The Senate should do a much better job requiring nominees to answer hard questions about those values and experiences before the nominees are allowed to sit on the highest court in the land.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Eric Segall.

ADVERTISEMENT
Part of complete coverage on
July 13, 2014 -- Updated 1245 GMT (2045 HKT)
To prevent war with North Korea over a comedy, what would Dennis Rodman say to Kim Jong Un? Movie critic Gene Seymour weighs in.
July 11, 2014 -- Updated 1315 GMT (2115 HKT)
Michael Werz says in light of the spying cases, U.S. is seen as a paranoid society that can't tell friends from foes.
July 11, 2014 -- Updated 1317 GMT (2117 HKT)
Eric Liu explains why in his new book, he calls himself "Chinese American" -- without a hyphen.
July 11, 2014 -- Updated 1512 GMT (2312 HKT)
John Bare says hands-on learning can make a difference in motivating students to acquire STEM skills.
July 11, 2014 -- Updated 1320 GMT (2120 HKT)
Karl Alexander and Linda Olson find blacks and whites live in urban poverty with similar backgrounds, but white privilege wins out as they grow older.
July 10, 2014 -- Updated 1620 GMT (0020 HKT)
Frida Ghitis says a poll of 14 Muslim-majority nations show people are increasingly opposed to extremism.
July 10, 2014 -- Updated 1828 GMT (0228 HKT)
Ruben Navarrette says spending more on immigation enforcement isn't going to stop the flow of people seeking refuge in the U.S.
July 10, 2014 -- Updated 2048 GMT (0448 HKT)
Faisal Gill had top security clearance and worked for the Department of Homeland Security. That's why it was a complete shock to learn the NSA had him under surveillance.
July 10, 2014 -- Updated 1841 GMT (0241 HKT)
Kevin Sabet says the scientific verdict is that marijuana can be dangerous, and Colorado should be a warning to states contemplating legalizing pot.
July 9, 2014 -- Updated 2047 GMT (0447 HKT)
World War I ushered in an era of chemical weapons use that inflicted agonizing injury and death. Its lethal legacy lingers into conflicts today, Paul Schulte says
July 10, 2014 -- Updated 1137 GMT (1937 HKT)
Tom Foley and Ben Zimmer say Detroit's recent bankruptcy draws attention to a festering problem in America -- cities big and small are failing to keep up with change.
July 10, 2014 -- Updated 1201 GMT (2001 HKT)
Mel Robbins says many people think there's "something suspicious" about Leanna Harris. But there are other interpretations of her behavior
July 9, 2014 -- Updated 1753 GMT (0153 HKT)
Amy Bass says Germany's rout of Brazil on its home turf was brutal, but in defeat the Brazilian fans' respect for the victors showed why soccer is called 'the beautiful game'
July 9, 2014 -- Updated 2107 GMT (0507 HKT)
Aaron Carroll explains how vaccines can prevent illnesses like measles, which are on the rise
July 9, 2014 -- Updated 0008 GMT (0808 HKT)
Aaron Miller says if you think the ongoing escalation between Israel and Hamas over Gaza will force a moment of truth, better think again
July 8, 2014 -- Updated 1903 GMT (0303 HKT)
Norman Matloff says a secret wage theft pact between Google, Apple and others highlights ethics problems in Silicon Valley.
July 8, 2014 -- Updated 2237 GMT (0637 HKT)
The mother of murdered Palestinian teenager Mohammed Abu Khder cries as she meets Palestinian president Mahmoud Abbas in Ramallah, West Bank on July 7, 2014.
Naseem Tuffaha says the killing of Israeli teenagers has rightly brought the world's condemnation, but Palestinian victims like his cousin's slain son have been largely reduced to faceless, nameless statistics.
ADVERTISEMENT