Supreme Court Reform?

David Bernell

 

During the election campaign, Joe Biden avoided providing a clear “yes or no” answer on the question of whether he supported expanding the Supreme Court if he were to be elected, and if Democrats were to gain control of both houses of Congress. The question of control of the Senate is still undecided, and I expect Republicans will win one or both seats in the Georgia runoffs. So I don’t think the question is going to invite an answer anytime soon. 

 

Still, at some point, maybe we will get to address the Supreme Court, which would be a benefit to the country. Our judicial branch is becoming increasingly politicized and polarized. We would be well-served by changing this. Every Supreme Court vacancy has come to be considered a matter of life and death for many people in this country, and the fights to fill these seats have become angrier and more bitter. This further fuels the divisiveness of American politics, and weakens the legitimacy of the Supreme Court.

 

Lifetime appointment into one of only nine positions is highly consequential, and it can influence public policy for a generation or more. We should diminish some of these consequences, make them smaller, and the way to do this is to make the Supreme Court bigger and the length of service shorter. This will lessen the power of each vote, and reduce the period of influence on public policy.

 

There are a number of proposals that have been floated in the past. Here is my favorite idea, which combines elements of other proposals.

 

I would expand the Supreme Court by requiring the President to nominate a new justice every year. In the absence of a Senate vote to confirm or deny the nominee within 60 days, the nominee shall be considered approved. The size of the Supreme Court will fluctuate, as the justices are entitled to lifetime appointments, as stated in the Constitution: “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” This means they can only be removed by means of impeachment.

 

Here’s the catch: Only the 15 justices appointed to the bench most recently will decide cases on the Court’s regular docket. All the justices would remain on the bench as long as they like, with their salaries, benefits and seniority. Those justices beyond the 15 who are deciding cases would then perform other duties of federal judges. They would fill in when a recusal or illness or some other absence leaves fewer than 15 justices to decide a case. They could decide cases in the district or circuit courts. And they could help to administer the judicial branch.

 

This has several benefits. It provides continual rotation on the Court with respect to deciding cases. It produces a de facto term limit to justices. It avoids the necessity of a Constitutional amendment. And most importantly, it could make the politics of the Supreme Court less divisive. This proposal would allow the Court to better reflect electoral political outcomes and stay in sync with public opinion. It would reduce the stakes for any single appointment. It’s fair to both political parties. And it would allow every president an opportunity to shape the Court without waiting for chance occurrences to open up seats on the Court, or letting justices choose the timing of their retirement so they can help select the potential pool of their successors.

 

It’s possible that the Democrats could at some point gain control of the White House and both houses of Congress (and this could happen in January). Then they could expand Supreme Court and pack it with justices they want. Then the Republicans could do the same to pack the Court in their favor whenever they gained similar control of the government. That’s not such a bad outcome either. Weakening the power of each vote and making vacancies arise more often is good for the Supreme Court, and good for the country. There’s no inherent reason that a court with 19 justices, or 27 or 35 is a bad thing, or worse than a court with nine members. A larger court would certainly correct what’s wrong with our current arrangement. And at some point, this strategy of continual expansion will yield such diminishing returns that it won’t be worth it to pursue.

 

That said, alternating battles to pack the Court are not better than an agreement that gives something to both sides. Due to the fact that there is a conservative majority on the Court, and there is likely to remain such a majority for a while, the Republicans have little incentive to agree to any kind of a deal with the Democrats to reform the Court. But if the Democrats do win two Senate seats in Georgia and get united about expanding the Court (two big ifs), an agreed, orderly change to the Supreme Court is certainly a better alternative than allowing Democrats to push through a Court expansion that offers nothing to the GOP.

 

 

(The New York Times did an excellent series of articles looking at a variety of ideas, one of which forms the basis of the proposal offered here, though there are many other thoughtful ideas that have been considered. [See https://www.nytimes.com/interactive/2020/10/27/opinion/supreme-court-reform.html]).