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Curb the Supreme Court’s imperial power

“For the good of the country and the Supreme Court, this moment demands a compromise nominee,” Ezra Klein wrote last week on the liberal Vox.com.

That’s not going to happen. But here’s something that might: Congress should mark the start of a new administration by recognizing that Supreme Court justices have too much power.

Key reforms can change that, and polls suggest strong support for the reforms.

Starting this debate would be noble on the part of Republicans, given their current dominance. But it also would serve Republican interests.

Because Republicans are the ones who typically are suspicious of government power. Nowhere does that power reign “supreme” more than on the Supreme Court; and a few vital reforms could move the court off of Mount Olympus to somewhere a little more down to earth.

Two such reforms come to mind, one of them already modeled by North Dakota.

The first is the most often talked about: term limits for justices. The idea even has a website, FixTheCourt.com, and surfaces routinely in the press (“Could term limits ease fights over Supreme Court nominees?” the New York Times asked last year).

Importantly, it’s also the reform that has popular support. A Reuters poll found 74 percent of Republicans and 66 percent of Democrats favoring 10-year terms for justices.

But this reform isn’t about polls. This reform is about power. Supreme Court justices have the power not just to make law, but to make constitutional law. The founders were so tightfisted with that power, they allowed amendments only upon ratification by 3/4 of the states.

Why do we also vest that power in a few unelected justices? Justices who serve for life?

Instead, “imagine each justice was appointed to an 18-year term,” law professor Orin Kerr wrote last year in the Washington Post.

“With nine justices, you would have a vacancy every two years. Every presidential election would mean two vacancies at stake.”

Which means every presidential election would bring public opinion to bear on the court, thus moderating — modestly and responsibly — the court’s power.

The second reform is the North Dakota model, and it has served this state well. It’s an even more explicit moderation: Require a supermajority, not a simple majority, in court decisions that remake constitutional law.

In North Dakota, if only three of the five Supreme Court justices want to declare a state law unconstitutional, they can’t do it. They need a fourth justice — not unanimity, but not a hotly contested simple majority, either.

It takes something approaching consensus on the North Dakota Supreme Court to rewrite constitutional law. It should take a similar agreement on the U.S. Supreme Court, too.

These are big reforms, but this is a big moment in American history. As important, they’re also unifying reforms. Republicans and Democrats alike understand that the court has too much power. If congressmen would grasp that unity and use it for the country’s good, they could make the change.

Opinion of the Grand Forks Herald. The Herald and Star-Observer are part of Forum Communications Company.

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