Senate majority leader Mitch McConnell told reporters that the left’s fury over Brett Kavanaugh’s confirmation to the Supreme Court will “blow over”—but he’s dead wrong. McConnell blocked dozens of Barack Obama’s nominees, prevented Merrick Garland from getting even a nomination hearing, and has twice exercised the “nuclear option” to make it easier for Trump to pack federal courts with judges of his choice. His overreach is pushing Democrats and progressives to revisit fundamental assumptions about how the Supreme Court operates. Today’s fiercely partisan Court is poised to veto much of the progressive agenda for decades after the Trump regime has left office, and there’s a growing awareness that Democrats and the left must prevent that from happening.
But how? There has been a lot of discussion lately about adding additional justices to “rebalance” the Court if Dems win big in 2020. Pete Buttigieg was the first presidential candidate to come out in favor of it. “In some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today,” he said at a campaign event in February. Nine other contenders for the Democratic nomination in 2020 are at least open to the idea, according to The Washington Post.
It’s easy to understand the appeal of simply appointing two (or four or six) liberal justices. But packing the Court is just one potential avenue of reform among many ideas that have long circulated among legal experts. I spoke to a range of scholars about how progressives should approach the right wing’s perversion of the nominating process and systematic capture of the Supreme Court. Some of those I spoke to believed that expanding the Court may be necessary, while others said they favored changing the way justices are selected, limiting their tenure on the Court, restructuring the Court, or even limiting its powers. Most of these potential reforms aren’t mutually exclusive. All are fraught in one way or another.
This is a political moment when all options should be on the table. Since the Court’s relatively brief period of liberal jurisprudence in the middle of the last century, Court watchers on the left have tended to criticize individual rulings that they believed were poorly decided, while conservatives railed against the legitimacy of the institution itself. But the right’s arguments about “robed tyrants” thwarting the will of the majority actually originated on the left, when the “Lochner era” Court was striking down large swaths of the New Deal. Conservatives co-opted that analysis a couple of decades later, as the Warren Court moved to end legal segregation, strengthen prisoners’ rights, and lay the groundwork for Roe v. Wade. Now, the left appears to be in the process of reclaiming that structural critique at a moment when there’s hunger for aggressive action on a host of issues—from climate change to health care—that the Court could potentially block or undo.
Here are the major proposals that emerged from my conversations with legal experts, along with their potential advantages and risks.
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Packing the Court
San Francisco State University political scientist Aaron Belkin says growing the number of justices isn’t grounded only in a desire to exact revenge for McConnell’s shamelessness. Rather, his argument echoes a central philosophy of law enforcement—that impunity for antisocial behavior encourages more of it. “There needs to be a political penalty imposed for the theft of the courts,” he said. “I believe that penalty should be proportionate and should nullify the effects of theft in a direct and straightforward way. So, it can’t be like, ‘You stole the courts, and now we’re going raise taxes on the wealthy in response.’ There has to be a direct connection between the penalty and the effects of the theft.”
Democrats must grapple with two arguments against “rebalancing the Court.” The first, and most common, is that it would result in massive political blowback. It’s not hard to imagine Republicans riding a new Tea Party wave back to power, re-packing the Court in their favor and blaming Democrats for establishing the precedent.
Belkin worries about that scenario. But he argues that “Republicans have been trained to believe that Democrats cheat for at least 50 years. And given their profound, deep belief that Democrats cheat, it’s probably baked into their turnout numbers.”
The other argument against Court-packing, alone, is more fundamental. Samuel Moyn, a professor of law and history at Yale, said that the anti-majoritarian nature of the institution is the structural problem that we should address. Adding justices, he said, “changes the personnel on the Court and the balance of power on the Court without changing the power of the Court.”
Moyn explained that in the 1930s, the mere threat of court-packing by Franklin Roosevelt compelled that era’s conservative justices to adopt the doctrine of judicial restraint that ultimately allowed Roosevelt to enact the New Deal. But that had the consequence of reinforcing the legitimacy of five unelected justices who are insulated from public opinion thanks to their lifetime appointments, enjoying veto power over laws enacted through the democratic process. (Political scientist David Faris, author of It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics, proposes that if Democrats are in a position to expand the Court, they should use the threat of doing so to demand Justice Gorsuch’s resignation.)
Limiting the Supreme Court’s Anti-Majoritarian Nature
If the Court’s antidemocratic nature is the real problem, other proposals could mitigate that. One is known as “jurisdiction-stripping,” i.e., limiting the kinds of issues and cases the courts can address. Moyn explained that if a party controls both chambers of Congress and the White House, “you can basically say, under Article Three of the Constitution, what the judiciary is allowed to do. What kind of cases the judiciary can take is up to Congress.”
There are potential problems with this approach. First, like any other act of Congress, it would be subject to review by the Court itself. Moyn believes that Court-stripping would not run into separation-of-powers issues–and he’s not alone—but several other scholars I spoke with believed it would run afoul of the Constitution. Given that this is a hot controversy within the legal community, the current Court wouldn’t have much trouble justifying a ruling that kept its powers intact. And, like Court-packing, it could invite tit-for-tat moves by the GOP. When they regained power, they could just turn around and bar the Court from hearing the kinds of cases that liberals tend to pursue.
A straightforward but risky alternative would be to embrace a concept known as “departmentalism.” Simply put, the founders envisioned the three branches of government as being co-equals, and there’s nothing in either the Constitution or the Court’s ruling in Marbury v. Madison—the landmark case that led to judicial review—that explicitly empowers the Court to overrule the other co-equal branches of government.
Ending judicial review is a radical idea, but one that’s consistent with what many of the founders saw as the Court’s proper role. In the Texas Law Review, Harvard legal scholar Richard Fallon Jr. wrote that “during the early years of U.S. history, it was widely believed that each branch or department of government should interpret the Constitution for itself, without any branch’s interpretation necessarily binding the others. Thomas Jefferson held this position…for all of his life. So did James Madison.”
In theory, a Democratic president with a supportive Congress could emulate Andrew Jackson, who famously (and probably apocryphally) responded to a Supreme Court ruling he didn’t like by saying that then–Chief Justice John Marshall “has made his decision; now let him enforce it!”
But there’s a fundamental danger in limiting the Court’s powers, or even delegitimizing it as Mitch McConnell and Senate Republicans have done over the past few years. For all its flaws, the Court is nonetheless responsible for defending Americans’ civil liberties from the political branches.
“Be careful what you wish for,” New York University legal scholar Melissa Murray told me. “Is the court’s role to reflect majoritarian politics in some way, or does the Court have an institutional obligation to protect vulnerable groups from the tyranny of the majority?” She pointed to decisions like Obergefell v. Hodges, which struck down bans on same-sex marriage, Lawrence v. Texas, which struck down anti-sodomy laws once used to persecute the LGBTQ community, and Whole Woman’s Health v. Hellerstedt, which barred states from banning abortion through the back door by regulating providers out of existence. And decisions like Boumediene v. Bush, Hamdan v. Rumsfeld and Rasul v. Bush, set important limits on the George W. Bush administration’s prosecution of its “War on Terror.”
But not all legal experts agree that the Court is an effective protector of minority rights. Erwin Chemerinsky, dean of the UC Berkeley School of Law and author of The Case Against the Supreme Court, told me that he Court has often been an effective veto against unconstitutional legislation, but by and large it hasn’t done a great job protecting vulnerable groups of people. “The Supreme Court has often failed, at the most important times, at its most important tasks,” he said. “When you look at the Supreme Court’s record in regard to race, it’s been dismal. When you look at the Supreme Court’s record in regard to protecting rights during times of crisis, it’s been dismal.”
There is one way to limit the Court’s ability to push around the other branches of government without gutting its ability to strike down unconstitutional laws entirely. There’s nothing in the Constitution that says it must render decisions by a simple majority. If Dems controlled the White House and both chambers of Congress, they could pass a law requiring decisions be supported by a supermajority, say 6-3 or even 7-2. In theory, that alone could prevent the Trump Supreme Court from running roughshod over the Democratic agenda for a generation to come without expanding the number of its seats or barring it from considering civil-rights cases.
Reforming the Confirmation Process
Whether Democrats seek to pack or defang the Court, there are other issues to consider. Given how high the stakes are in controlling the Court, the parties now have incentives to privilege partisan or ideological reliability over legal talent and judicial temperament. Even setting aside the assault allegations against him, Brett Kavanaugh, with his intense partisan animus and quick temper, is a good example.
To address this, Erwin Chemerinsky proposed a merit-based system for selecting federal judges. “Any president could do this,” he told me, “and it wouldn’t require a constitutional amendment.” The idea would be to set up a bipartisan panel of experts, and then require a supermajority to agree on a handful of top jurists for the president to pick from. He points out that Jimmy Carter established just such a scheme for choosing appellate judges, and argued that it might offer a solution to “the intense partisanship that we now have in regard to the confirmation process.” The problem with this approach is that it establishes a norm for future presidents to adhere to and, as we’ve learned, such norms don’t constrain people like Donald Trump.
Ending Lifetime Appointments
Court watchers have long seen term limits for Supreme Court justices as a way of lowering the stakes around confirmations. Senator Chris Coons (D-DE) told The Daily Beast that term limits have “been discussed” on the Hill. He floated the idea of enacting terms “such that every presidency had a certain number of predictable Supreme Court seats.” One proposal that’s popular among reform advocates is 18-year terms that result in one seat turning over every two years.
Term limits alone may not be sufficient for this moment, but it would be an important reform. “We kind of take lifetime tenure for granted,” said Carolyn Shapiro, the founder and co-director of Chicago-Kent law school’s Institute on the Supreme Court of the United States. “But if you think about giving somebody the amount of power these people have for 30 or 40 years in a democracy, it is kind of insane.”
Most proposals for term limits require amending the Constitution, which says that federal judges “shall hold their Offices during good Behaviour.” But Shapiro points out that the Constitution gives Congress broad latitude in structuring the Court and a party with unified control could effectively create Supreme Court term limits by “restructur[ing] the way the courts are set up and how the personnel are assigned.” She noted that while the Constitution guarantees lifetime appointments to the federal bench, it “doesn’t say you get appointed to be a particular [kind of] judge.
That latitude is central to an idea proposed by Daniel Epps at Washington University in St. Louis and Vanderbilt’s Ganesh Sitaraman. They suggested that instead of having nine permanent justices presiding over the Court, lower-court judges would be rotated onto the bench to hear cases for short periods of time. Under their proposal, all federal appeals-court judges would be made associate justices of the Supreme Court, and then nine of them would be selected at random to sit on the bench for two-week periods. It’s an elegant idea that would certainly decrease the power of any single judge and make it impossible for a justice “to advance an ideological agenda over decades of service or develop a cult of personality among partisans.” It would also increase the geographic and educational diversity of the Court.
A real drawback to that idea is that Republicans have been relentless in packing the lower courts with reliably conservative jurists. As Melissa Murray pointed out, “If you’re a progressive who’s worried about the Court going in a rightward direction, you should be really worried about the lower courts.” So one way to limit the terms for federal judges to an extent—and require that they have a certain amount of experience—would be by establishing a minimum age to be nominated for a judgeship.
The ideas for reform outlined above aren’t mutually exclusive. If Democrats kill the legislative filibuster, which they should, they could expand—or “unsteal”—the Court, create a merit-based selection system for choosing federal judges over the age of, say, 45 and then rotate them in and out of the Supreme Court on a regular basis. Everything should be part of the discussion.
The key here is that we shouldn’t limit the debate now emerging to whether Democrats should add a couple of justices if they get an opportunity to do so. We need to think more broadly about how to restore the Court’s legitimacy—and bring some decorum to our circus-like confirmation process—without continuing to aggravate its partisan nature and reinforcing its antidemocratic nature.