We’re deep into the Democratic primary and as of the writing of this article, 10 candidates have qualified for the next round of debates. One of the most effective maneuvers the Republicans have made in recent years is to focus on the judiciary, from the blocking of Merrick Garland to confirming appeals court judges. This, and other maneuvers by both political parties, has led to a decline in trust for the judicial branch. That makes your work as an attorney more difficult but the most important thing is for clients to trust the system, and to trust your ability.

The moves Republicans have made in recent years have led many Democratic candidates to consider changing how the Supreme Court works. Some Democrats are seriously considering packing the court. The last time such a policy was seriously proposed was in the 1930s, when confirming appeals court judges. This, and other maneuvers by both political parties, has led to a FDR proposed doing something similar - creating age limits for Justices. Democratic Primary candidates have proposed a wide variety of methods to change the makeup of the Supreme Court, from adding Justices to the court, to imposing term limits.

This continued escalation of legislative reach into the judiciary could have a number of consequences. As we’ve already established, trust in the judiciary is weakening as the years go by and it continues to act as an arena for policy battles. We’ve all heard that the judicial branch does not have the power of the purse and it does not have an army. The only thing that gives the Supreme Court its power is consensus about its legitimacy. The politicization of the courts wears away at that legitimacy. When that happens, how will the Court impose its will? What if the people reject rulings because they feel they come from a place of partisanship, not justice? In other words, if we begin to feel that justice isn’t really blind, what will become of our laws?

This, however, poses an important problem. Many Americans would agree that there are flaws in our justice system right now - we can already see how politicians have turned the courts into a game, useful when vying for power. We want to take measures to limit their ability to politicize the courts, but to take those measures, we would need legislation to change the justice system, be it the methods by which judges are appointed or something else. There are problems with all forms of judge selection, from appointments to elections of all sorts, partisan or not.

I’m not going to propose solutions here, though if I think of any that solve a number of problems, I’ll be sure to let you all know. This post is simply to acknowledge that there is a problem and that we need to work together to find a solution. Let’s say Democrats win the Presidency, keep the House, take the Senate and pack the courts - how will Republicans feel? What will Republican lawmakers do to rebut when they regain power? The courts cannot be a political game - they must be seen as impartial.

Here at Attorneys on Demand, we don’t just wax philosophical about potential changes to the Supreme Court, we will find you a special appearance attorney to help you and your clients in a pinch.