Scalia's dissents reveal need for Supreme Court reform

Recently, the Supreme Court handed down two of the most important decisions of 2015. In a 6-3 ruling, the Supreme Court upheld the portion of President Obama's health care law giving millions of Americans tax subsidies to help them afford health insurance. The following day, the Supreme Court ruled that the Constitution guarantees a right to same-sex marriage.

Both cases represent significant strides toward a more progressive, more perfect union, but one person in particular would strongly disagree. In quite aggressive prose, Justice Antonin Scalia delivered a scathing dissent for the health care ruling in King v. Burwell, referring to the majority opinion as being "pure applesauce" and calling the case "the Court's next bit of interpretive jiggery-pokery."


Then, regarding the ruling in the same-sex marriage opinion, Obergefell v. Hodges, Justice Scalia went one step further in a footnote of his dissent in which he described his own disgust for the majority opinion: "If, even as the price to be paid for the fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag."

While Justice Scalia's general dissent is no surprise, his flagrant insertion of personal perspective and political preference is wholly inappropriate and undermines the fundamental ideal of the Supreme Court: impartiality in the eyes of the law.

In looking at Justice Scalia, we see a man who was appointed to the bench almost 30 years ago by President Reagan (a president who passed away more than a decade ago) and is growing more and more out of touch with the expectations of his position. To be more specific, we see a man who seems to no longer respect the institution responsible for arbitrating the highest laws of the United States, with his wacky opinion writing and his relentless grandstanding.

Justice Scalia plays politics both on and off the bench. He regularly speaks at ultra-conservative events, such as those hosted by the Federalist Society and the Koch brothers. And we see now that he once again delivered dissenting opinions that were both inappropriate and unprofessional for a Supreme Court justice.

Now is the time look critically at the rules and regulations that structure the court and to seriously consider reform, starting with standardizing the tenure of Supreme Court justices to a reasonable term of 18 years. This is not a new idea. It originates with legal scholars from across the political spectrum. Note that the Constitution in Article III, Section I states that justices "shall hold their offices during good behavior," but it does not specify term length or lifetime terms, as has become the custom.

Capping Supreme Court justice appointments to staggered 18-year terms would not completely reverse the new normal of extreme partisanship in government, but it would create a necessary layer of protection for the court against extreme politicization's corrupting influence. Standardizing terms would afford each president two Supreme Court nominations per term, greatly reducing the likelihood of a scenario in which one president appoints half the bench and the following president appoints no one. And with respect to this week's rulings, term limits would ensure that the American people have some reprieve in sight when a Supreme Court justice has clearly served past their prime.

That's why I introduced legislation in the Maryland General Assembly, urging our federal representatives to support an end to lifetime tenure on the Supreme Court, and why I am asking citizens across the U.S. to petition their state and federal legislators to do the same.

King v. Burwell and Obergefell v. Hodges resulted in rulings that will benefit the people of this country for years and years to come. But let's not forget that this same court obliterated campaign finance reform, workers' rights to challenge wage discrimination and the Voting Rights Act, not to mention their retro rulings on women's reproductive rights.


Now is the time to depart from arbitrary tradition, to set term limits on our justices, and to demand an impartial, effective Supreme Court.

Dan K. Morhaim is a physician and a member of the Maryland House of Delegates, representing District 11 in Baltimore County. His email is dan.morhaim@house.state.md.us.