When traditional methods of taxation proved inadequate, America amended the Constitution to allow for an income tax. When enough women demanded the right to vote and enough men agreed, an amendment opened that door, too.
As the ineffectual confirmation hearings for Elena Kagan showed, the U.S. Supreme Court today is an institution that needs reform.
Congress should propose an amendment that limits the court's power -- possibly by term-limiting justices to, say, 10 years of service, possibly by demanding supermajority votes by the court before laws could be declared unconstitutional.
Such changes would bring the judicial branch back into balance with the executive and legislative -- and in so doing, ease one big source of the hyperpartisanship that now dominates Washington.
Ever since Marbury vs. Madison in 1803, the court has been a "superlegislature" of sorts, "super" because the laws it creates can't easily be undone.
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But in the past 50 years, the court's key decisions have become partisan to an alarming degree. That's because two legal philosophies have arisen that bitterly oppose each other while perfectly mirroring the interests and philosophies of our political parties.
So, Democrats and liberal justices favor progressive interpretations of a "living" Constitution, while Republicans and conservative justices prefer loyalty to the Constitution's original text.
The best place for Republicans and Democrats to settle political arguments is in Congress and the presidential election. But the court's growing partisanship and willingness to take sides hugely magnifies the justices' importance.
As both parties know, getting a sympathetic justice on the court beats securing a veto-proof majority in Congress, because while majorities are fleeting, a justice is forever (or almost, in political terms).
Plus, that justice's rulings can't easily be undone, again unlike any ordinary law. To amend the Constitution, you can win two-thirds of the Congress and three-fourths of the states -- or you can get five justices on the Supreme Court. It's not a hard choice.
As a result, we have the Kagan hearings, a near-charade from start to finish (as were the Roberts, Alito and other confirmation hearings since Robert Bork's). Make that from before the start: Because Kagan's career, like that of many ambitious lawyers these days, consists of dropping just enough clues to suggest which side she's on without voicing any strong (and potentially filibuster-inducing) opinions at all.
Winning confirmation is what matters, first, last and always. After that, a justice at last can show his or her true colors, again as recent experience has shown.
The result is politics on the bench, not justice -- politics that depends entirely on which side holds the majority on the court.
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If the court is going to keep acting like a legislature (as seems very likely), complete with "Democrats" and "Republicans" among the justices, it should be treated like one. That means term limits, a supermajority requirement or some other reasonable means of checking the justices' political power.
-- Tom Dennis for the Herald
