Presidential Commission on the Supreme Court of the United States
Some critics of the current system contend that it produces a persistent gap between the composition of the Court and long-term movements in popular opinion. This misalignment might occur by happenstance, because the fortuitous nature of vacancies enables some Presidents to make many more appointments to the Court than others and therefore to have a much greater influence on its direction.[51] It may also happen by design, if a transient governing majority, or one that is about to be superseded, succeeds in appointing to the judiciary a significant number of candidates whose legal philosophy matches that majority’s preferences—a phenomenon sometimes referred to as partisan entrenchment. During such periods of misalignment, there may be a heightened risk that the Court’s direction on political or social issues will be perceived as significantly or increasingly distant from the strongly held preferences of a large majority of the public.
Some commentators assert that such a misalignment exists today. They point to the fact that Republican Presidents have appointed fifteen of the last nineteen Justices and six of the current nine Justices, “even though Democrats have held the presidency for 16 of the last 28 years and have received more votes in six of the last seven presidential elections.”[52] President Trump, for example, appointed three Justices in his single four-year term; his immediate Democratic predecessors, Presidents Barack Obama, Bill Clinton, and Jimmy Carter, made only four appointments total in a combined twenty years in office.[53] This argument dovetails with some of the concerns about Supreme Court legitimacy. Observers worry that, absent a change in membership, the Court will reverse longstanding precedents that may be favored by a large segment of the public, such as those concerning reproductive rights.[54]
The prospect of misalignment arguably deepens in light of certain structural features of the Constitution and their relationship to the country’s demographic development. As larger states grow relative to smaller ones, the power imbalance in the Senate increases; Senators from smaller states, who represent increasingly smaller portions of the electorate, nonetheless retain the same power to move or block nominations. In addition, the vagaries of the Electoral College will increasingly magnify the risk that candidates who do not secure the popular vote will nonetheless win the presidency and with it the opportunity to appoint Justices to the Court.
What some critics cite as misalignment, however, others view as serving important values or purposes of the constitutional system. It is by design that members of the Court (and the rest of the federal judiciary) do not stand for reelection. The protection of life tenure may help maintain judicial independence by providing a degree of insulation from the partisan politics of the moment. This insulation also helps the Court to serve as a check on majority opinion in order to protect constitutional rights and other principles that political majorities may not
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