I have been giving the SCOTUS justices a hard time for making bad decisions. But part of the problem is that the system is badly designed for current conditions. Consider this tweet:
There are a number of badly designed elements. One key issue is that the design of judicial review is not ideal in the United States. It is true that reviewing a law for constitutionality is important. It might be more important to do before the law is passed and not in the context that it has already injured people. It also doesn't always have the greatest history: Dred Scott v. Sandford held that the framers had not intended to include persons of African descendant as citizens. This sort of ruling makes it clear why a constitution needs to be a living document.
Another is that life tenure, coupled with this much power, makes it very easy to for the court to go wrong and (obviously) judicial remedies are not going to happen. Judges are not, as a class, going to decide that they violate the good conduct rule in making rulings. Further, it creates a sense of ownership over the seats that is simply odd. Tenured professors have jobs that also have strong protections, but a university could be closed (we can't close the federal judiciary) and more professors can be hired to balance out older colleagues. A fixed number of seats is very different. Look at Ruth Bader Ginsberg's last wish: "My most fervent wish is that I will not be replaced until a new president is installed". The people arguing that this wish should be respected were mad. This job did not belong to her and her views on it being filled have nothing to do with what should have happened. Now, you can argue the precedent after Scalia (4 years old) should have been respected -- that is at least a coherent argument. But the argument from the officeholder is just a private viewpoint, of no more importance than any other.
Power is corrupting and making the most powerful branch of government a life tenure post in a democracy is dangerous. Courts are beginning to interfere with routine business: congressional subpoenas take months to resolve as courts are used for delay, immigration policy is blocked by nationwide exemptions, and laws like the ACA are rewritten as part of the judicial process.
In this context, the decision by Stephen Breyer to resist resigning is bad, but the real issue is how the institution corrupts incentives. It is a seniority based system so the job is best at the very end of one's career. This shifts toward gerontocracy. But it is also a system where Amy Coney Barrett is sworn in at 48 and could easily live to the same age as RBG (87) serving for 40 years or so. That is a terribly long time to not have future input into the role. The issue is systemic and not just bad individual decisions and I have much more sympathy for Breyer when I see it as a system failure.
The real question is what is next? It's clear this is where we were going since Bork whether you see it as an issue of Ronald Reagan for nominating an extremist or congress for pushing back. One way or the other, the norms were broken and the slow slide began. Now the question is what next? Will be see an FDR era shift to judicial moderation? Or will the system keep cracking?
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