from David French in the weekend Review section of the WSJ, Why We Fight So Ferociously Over the Court:
What is to be done? There’s no easy answer, and we certainly can’t forsake judicial review. It is the necessary implication of placing “the judicial power of the United States” in the federal courts, and it is an indispensable check on majoritarian tyranny. But there are ways to lawfully decrease judicial power without removing necessary judicial restraints on the elected branches of government.
A simple and modest start would be to end the issuing of nationwide injunctions by federal district courts. District court judges are judicial masters of their districts, not temporary Supreme Court justices, issuing rulings binding on an entire, vast republic. It would be a small but important way to hand more power back to elected officials.
A tougher but more consequential reform would be term limits for Supreme Court justices. The most viable and interesting proposal comes from the advocacy group Fix the Court, which suggests that justices be nominated for 18 year terms, after which they’d be forced to take “senior status.” On senior status, they’d still possess the same office and compensation and could serve on lower courts, but they’d no longer be active on the Supreme Court.
Fix the Court’s proposal of 18-year terms would provide each president with two choices in each term, in their first and third years. It could halt the present trend of nominating younger judges in the hopes that they can serve for 30 years or more—terms in office longer than the reigns of many kings. And while it wouldn’t politicize the Supreme Court with outright judicial elections, it would measurably democratize the process and decrease the stakes of each nomination.
But we can’t forget a final necessary change: voluntary judicial restraint. As the nation mourns the loss of Justice Ginsburg, perhaps it’s time to remember her admonition that “measured motions” are often preferable to “breathtaking” judicial strokes. While there are moments when the defense of the Constitution requires bold action, there are many others when the answer is to leave the question of justice to the people’s elected representatives—and to let American democracy run its messy, necessary course.