How to Save the Supreme Court
Beginning the day Alexander Hamilton penned Federalist No. 78 under the pseudonym “Publius,” the vision of an independent judiciary has since remained a hallmark of American democracy. Hamilton envisioned the judicial branch as the least influential of the three branches, given its lack of control over the purse and the cannons. At the same time, he imagined the court system as the last guardian of the foundational principles set forth in the Constitution, independent and beholden only to the Constitution and no political party or individual. On both accounts, however, the judiciary—and the Supreme Court in particular—has not lived up to that lofty goal.
In 1935, President Franklin Roosevelt began to grow frustrated as the Supreme Court stifled the early programs of his New Deal agenda. Over the next 13 months, the Court would strike down more pieces of legislation than at any other period in U.S. history, often taking a libertarian stance on regulatory affairs and interpreting the Commerce Clause so narrowly that not even coal—then one of the largest industries in the country—could be regulated. After winning his 1936 re-election bid, Roosevelt proposed the Judicial Procedures Reform Bill of 1937. One of the most flagrant refutations of Hamilton’s notion of an independent judiciary, the bill offered that the President could appoint one new Supreme Court justice for every justice over the age of 70 years and six months on the bench (and a decade of service on the Court). Following swift political pushback and little support from fellow Democrats in Congress, Roosevelt realized the bill would not pass.
The political nature of the Court was far from extinguished.
During the 1980s and 1990s, the Reagan and H.W. Bush administrations implemented a total of five alterations to the composition of the Supreme Court, ushering in a new era of conservatism on the bench, especially in federal-state disputes. The nominations of Robert Bork and Clarence Thomas not only ignited partisan floor fights, but also introduced scrutiny over a nominee’s personal life and cases of personal misconduct for the first time. In 2015, Senate Republicans kept empty the seat left by the late Antonin Scalia for over 400 days by refusing to hold confirmation hearings for Merrick Garland, President Obama’s nominee. Less than a year later, a president under FBI investigation was permitted to appoint Neil Gorsuch to the open seat and nominate Brett Kavanaugh for Anthony Kennedy’s former seat. Estranged leftists felt that they had been stolen from. Some started calling for the next Democratic president to push another quasi-Rooseveltian court-packing bill.
The fundamental problem underlying the Court is that it is an unaccountable body ruled by alumni from the same law schools and prep schools, borne out of tentative political circumstances frequently absent a majority of the popular vote.
Those who support court-packing in good faith believe that a conservative Court with no moderate swing vote would invalidate any progressive legislation passed under a Democratic Congress or Presidency over the next 30 years. They also rightly argue that no text in the Constitution provides for a maximum of nine justices on the bench. In a court-packing scenario of this nature, Congress could conceivably pass a law changing the minimum number of justices—just as it did with the Judiciary Act of 1869. However, any temporary gains accrued through a packed court would be countered by the erosion of American democratic institutions and the very legitimacy of the Court itself.
The fundamental problem underlying the Court is that it is an unaccountable body ruled by alumni from the same law schools and prep schools, borne out of tentative political circumstances frequently absent a majority of the popular vote. Compounding this issue is the fact that these same justices can only leave office either by death, by resignation, or by means of a majority vote in the House of Representatives to impeach and then a ⅔ vote in the Senate to convict. The result is a Court that is incapable of keeping up with the times, a Court whose actions fail to reflect public sentiment, a Court that only accidentally arrived at the conclusions reached in Brown, Gideon, and Obergefell because the Federalist Society did not entirely vet the justices and the Senate Majority Leader was not beholden to the norms of the presidential appointment process. Put simply, for being one of the most venerated and revered democratic institutions in the history of the world, the Supreme Court’s composition continues to be increasingly determined by circumstances and events that are pretty damn undemocratic.
The key disposition held by proponents of court-packing is that this undemocratic process—whose weaknesses are exemplified during periods of intense partisanship—to mean that all democratic norms are out the window, and that Democrats are owed seats because of it. Todd Tucker of the Roosevelt Institute argues that when Senate Majority Leader Mitch McConnell refused to hold hearings on Merrick Garland’s nomination, the GOP abandoned all norms pertaining to the judiciary. Thus, Tucker continues, packing would be an act of justice, ensuring that the Court would “more carefully [reflect] the mores of the time, rather than shackling democracy to the weight of the past.”
While this theory sounds noble—and would sure prove to be good for the progressive cause in the short term—it is a short-sighted fallacy. Whenever the Court has been expanded in the past, it has been for political motives that have been and continue to be replicated over and over again. And who is to say that Republicans would not respond with the same potency when in power—especially if they have, in fact, abandoned all democratic norms? Actively working to undermine a century-and-a-half of precedent while believing that the party that nuked the 60 vote requirement for justices, the party that stooped to the level of the Peter Strzok investigations, and the party that denied Garland’s nomination even a hearing works actively to abrade the legitimacy of the federal judiciary. Consider: each time the two parties add two more of their lackeys to the bench, the Court becomes bigger and bigger and the distinction between the legislative and judicial branches becomes less and less clear, resulting in a gradual cessation of power into the hands of the legislative branch, empowering Congress to essentially do whatever it wants with no check from the judiciary.
Although the American means of packing may be expressly democratic, it rides a slippery slope. Court-packing has been a favorite tool of autocrats for decades. In 2004, the Venezuelan National Assembly packed the country’s highest court, adding 12 justices to the previous 20, with all 12 being staunch allies of Hugo Chavez. In 2015 and the 1990s respectively, Honduran and Argentine dictators greatly increased the number of minimum justices on their benches or impeached their enemies, in both cases appointing their allies to fill the vacancies. And this phenomenon is not unique to Latin America; This year, Hungarian Prime Minister Viktor Orban and his Fidesz party expanded both the number of justices on the Court and their term lengths, and abolished a key rule requiring opposition approval of judicial nominees. Earlier this year, Turkish President Tayyip Erdoğan expanded the number of seats on the Yargıtay, Turkey’s highest appellate court, from 11 to 17, facilitating the appointment of political allies and ensuring a pro-Erdoğan majority for decades to come. The political calculus at play here is nothing sophisticated: when authoritarians feel under duress or wish to eliminate all opposition, they consolidate power by packing their respective courts.
Perhaps the Supreme Court today has too much power. But even if it does, the solution is not to make it powerless.
Now, proponents of court-packing would argue that the act is not necessarily anti-democratic just because it has been done in anti-democratic ways in the past. For example, Vladimir Putin has jailed powerful Russian political figures on unfounded charges of embezzlement of state funds to extinguish political opposition and demonstrate his power but that does not mean that any and all attempts to regulate corruption anywhere are inherently anti-democratic.
However, as discussed earlier, it is also possible that packing the Court will escalate into a tit-for-tat cycle that serves ultimately to weaken the federal judiciary as an institution. If a Democratic executive and legislature were able to ram through four new justices that would overrule Shelby County v. Holder, would the decisions by the Court, without any army or coercive force stronger than public reverence to defend it, be regarded as legitimate? Would states like Texas refuse to seek preclearance from the federal government when they change their voting laws? Even Ian Millhiser of ThinkProgress, who is at least somewhat supportive of packing as a last resort, seems to think so, saying that “packing the Court would effectively destroy the legitimacy of the federal judiciary and potentially embolden right states … to ignore decisions they don’t like. No more Roe. No more Obergefell. No more Fourth Amendment.”
Perhaps the Supreme Court today has too much power. But even if it does, the solution is not to make it powerless.
Of course, packing the Court is not only way to address its faults and shortcomings. The lack of transparency and accountability on the bench is the most pressing problem, not the number of justices. A possible solution is term limits. Voters tend to be receptive to term limits, with roughly 70 percent of those surveyed in 2015 by Reuters endorsing them for the Court. Whereas much of the existing sentiment on legislative term limits is negative in their emphasis on the emboldening of extremists and the ensuing faltering of relationships built through mutual service, many prominent Court thinkers have endorsed them for the judiciary in a much more positive light. In fact, it was none other than Chief Justice John Roberts himself who once wrote that term limits of 15 years or so would ensure that justices do not “lose all touch with reality through decades of ivory tower existence.” In theory, justice term limits bring new blood and varied schools of thought onto the bench and collectively keep Court decisions in line with the thinking of its times.
The greatest concern over term limits is that too much power would be vested in the executive branch, making it possible for a single president to appoint a disproportionate number of justices. Indeed, if term limits were set at 18 years as is popular suggested, a Harvard study estimates that the number of justices appointed would roughly double in the next century, and that a two-term president would have roughly a 43 percent chance of appointing a majority of the justices on the bench. Just five presidents (aside from George Washington, who started from scratch) have been able to appoint more than five justices.
The implications of potential term-limit legislation are not and will not be perfect, but that does not mean certain provisions cannot be applied to minimize externalities. In this respect, amendments to the 18-year term limit formula can ensure that no one president has too much influence. Staggering the expiration of judicial terms can ensure that each president will only be able to appoint a maximum of two justices while still bolstering frequent turnovers on the bench (the plan would also attach terms to the seats each justice occupies rather than to the justice themself). A study cited by the researchers involved in the aforementioned Harvard study estimates that under this formula, there would be 16 new justices over the course of the next century—enough to give the Court new blood, but not so many as to disrupt the periodic consistency of its jurisprudence. The study also gave just a 12 percent probability of a single president appointing a majority of justices. Importantly, this guideline would ensure that every president serving a four year term would be able to make at least one appointment.
Unfortunately, implementing judicial term limits would require a constitutional amendment, which typically means that in today’s partisan times, it would be dead upon arrival. However, widespread support across party lines suggest quite the opposite.
Admittedly, simply imposing judicial term limits alone would not single-handedly make justices more accountable. Steps must be taken to prevent them from engaging in unethical and corrupt behavior during their tenure on the bench. The non-partisan organization Fix The Court offers several sound solutions. The pipelines between the federal government and lobbying interests have been well-documented and are one of the premier reasons why voters look unfavorably at Washington. Senator Elizabeth Warren’s recent anti-corruption bill calls for a lifetime ban on lobbying for all federal elected officials and Cabinet members. Extending this ban to Supreme Court justices would bolster public accountability of the Court by ensuring that elected and appointed officials in all branches of the federal government would not be able to make the Swamp even more disgusting than it already is—and perhaps even wipe up some of the muck.
On a similar note, Fix the Court recommends that the Court adopt an official code of ethics. The Supreme Court is exempt from the Code of Conduct for U.S. Judges, creating serious gray areas around issues like recusals. FTC research has found that every single justice currently on the bench has committed ethical shortcomings (like omitting assets from financial disclosure documents and speaking at political fundraisers despite conflicts of interest). A binding SCOTUS code of ethics administered under Congressional oversight, that bans justices from owning individual stock, would establish a single, uniform guide for justices on the Court, in addition to preventing further judicial conflicts of interest.
Reforming the Supreme Court will not be easy and cannot be done with a single piece of sweeping legislation. Congress must embrace bold but clear constraints on an increasingly imperial judiciary. The era of lifetime appointments and ethical oversights ought to be the sacrificial lamb of American democracy’s quest for a more representative and accountable Court.
Photo credit Library of Congress