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At the end of September, shortly after Justice Ruth Bader Ginsburg died, I wrote about the rather limited array of options Democrats in Congress were considering to delay or stop Judge Amy Coney Barrett’s confirmation to the Supreme Court. They didn’t work.
But if Democrats manage to win the White House, reclaim the Senate and keep the House in the coming weeks, they will acquire a far more expansive legislative arsenal. Even Joe Biden, who resisted calls for court reform during the primaries, has said he would commission a bipartisan group of scholars to study ways of overhauling the judiciary, because, as he put it, “it’s getting out of whack.”
If elected, he will not want for ideas. On Tuesday, my colleagues in Opinion published a suite of pieces from legal thinkers about what brought us to this point, how the court should be reformed and whether it needs reforming at all. Here is a distillation of those proposals, as well as several others that have caught the attention of people in power.
‘Getting out of whack,’ a history
The Supreme Court’s centrality in American politics is unusual by international standards. Understanding why requires going back to at least 1803, when in the landmark decision Marbury v. Madison, the court assumed the power to overturn laws it deemed unconstitutional. That decision introduced what the legal scholar Alexander Bickel called the “counter-majoritarian difficulty”: The United States is a democracy — or a democratic republic, if you like — but it also grants unelected jurists sweeping authority to undo the actions of lawmakers who most directly represent its citizens.
That tension has waxed and waned over the country’s history, growing once again pronounced in recent years with the court’s lurch to the right. As Emily Bazelon points out, the Republican Party has lost the popular vote in six of the past seven presidential elections, but it has now appointed six of the last 10 justices. During that same period, in the Senate it represented a majority of Americans only between 1997 and 1998.
“That’s a dangerous proposition for our constitutional order,” Ms. Bazelon writes. “If the court yanks the country too far from the elected branches, then they will rein it in, because in the end, the Constitution gives them the power to change the court.”
Increase the size of the court (or threaten to)
The Supreme Court’s size is not constitutionally mandated, and Congress changed it seven times in the nation’s early history. The last successful attempt to change it from nine justices occurred in 1866, when Republicans temporarily shrank the court to block a nomination by President Andrew Johnson for undermining the ill-fated project of Reconstruction.
There are strong arguments both for and against changing the court’s size once more. The most often-cited concern is that any expansion effort by one party risks retaliation from the other: If Democrats pursue that strategy in 2021, Randy Barnett, a law professor at Georgetown, believes the two parties could find themselves locked in a spiral of mutual escalation that has no natural endpoint.
“We simply cannot know what other of our most basic norms will then be called into question,” he writes. “As we have seen in countries such as Venezuela and Poland, that’s how constitutional norm destruction works.”
Whatever the potential costs, many Democrats believe they may have no choice but to expand the court if they wish to deliver on the most important parts of their policy agenda.
But there are nonpartisan and institutionalist arguments for expanding the court, too. As Adam Serwer writes in The Atlantic, Republican-appointed judges have made it harder and harder to vote in recent years, which he says is an attack less on the Democratic Party per se than on the democratic process itself. Adding justices would exact a price on such behavior, which Susan Hennessey and Quinta Jurecic argue could counterintuitively work to preserve the court’s legitimacy, not undermine it.
It’s also possible, as Aaron Tang suggests, that the mere propsect of expansion could be enough to rein in the current justices. That’s what happened in 1937, when the Supreme Court blocked key parts of the New Deal. President Franklin Roosevelt responded by asking Congress to add six seats, prompting the court’s conservative justices to adopt a more restrained approach that earned the public’s approval.
“A credible threat to pack the court would create powerful incentives for the current justices to moderate their views on important issues and preserve the court’s credibility,” Mr. Tang writes. “If they don’t, there will be time to turn to other options.”
Limit how long justices serve
No other major democracy in the world gives the justices on its highest court life tenure, nor do 49 of the 50 states, as Steven G. Calabresi, a law professor at Northwestern and Yale, notes. The result is a kind of judicial oligarchy in which justices plan their retirements to influence the selection of their successors according to their ideological preferences.
The solution, Mr. Calabresi argues, is to limit present and future justices to an 18-year, nonrenewable term, staggered so that one-term presidents would be guaranteed two appointments, and two-term presidents four.
What if the Senate blocks a nomination, as it did Merrick Garland’s in 2016? In Mr. Calabresi’s proposal, failure to confirm a justice would lead to a salary and benefits freeze for the president and all 100 senators, who would be confined until the seat is filled.
This approach has less potential to lead to escalation than expansion, its proponents argue, and could help defuse the explosive politics around picking justices. But unlike court expansion, it wouldn’t change the court’s current composition and could lead justices to rule in ways that maximize their future employment prospects.
Another case often made against term limits is the practical one: The reform is widely understood to require a constitutional amendment, the threshold for which is so high as to be currently unthinkable. As a result, scholars have had to devise legislative workarounds, such as transitioning justices to “senior” status so that they serve only in the event of recusal or disability, or rotating justices down to a lower court.
De facto term limitation of this kind would be an easy fix, in the view of Larry Kramer, a former dean of Stanford Law School. “It protects judicial independence and is fair to all sides, while reducing the likelihood of a court that is ideologically extreme or out of sync with the rest of society,” he writes.
Make the court less important
Both court expansion and term limits at least tolerate the premise of the Supreme Court’s power over American politics; for some proponents, the value of these reforms lies precisely in their potential to protect that power from structural challenge.
But for those who are more skeptical of the post-Marbury legacy of judicial supremacy, there is another set of proposals — what the law professors Samuel Moyn and Ryan Doerfler have called “disempowering reforms” — that aim to weaken the institution itself.
That could be done by abrogating the Supreme Court’s authority of judicial review or by simply rejecting it, as Abraham Lincoln did when the court ruled in 1857 that Black people could never be American citizens.
Less radically, Mr. Moyn and Mr. Doerfler propose legislation requiring six or seven justices, rather than the current five, to agree before declaring a federal law unconstitutional. Such a supermajority requirement would have no inherent partisan benefit, they argue, but it would result in a “mutual judicial disarmament” that lowers the stakes of court appointments, transferring power to the more democratically accountable branches while still allowing the court to act in cases of flagrant constitutional violation.
Congress could also take away the power it gave the court in 1925 to choose its own cases, which allows justices to promote their own agendas in implicit dialogue with a legal class attuned to the court’s every move. Reclaiming the court’s docket-control authority would effectively take the Supreme Court “out of the driver’s seat,” writes Melody Wang, a Yale law student.
Another category of disempowering reforms entails removing certain domains of law from the court’s jurisdiction, as Congress did during Reconstruction. The Constitution gives the legislature broad (though not unlimited) discretion to do so; if it wanted, Congress could even create a new court that assumes jurisdiction over the minority of Supreme Court cases that turn on constitutional questions, as Kent Greenfield, a professor at Boston College Law School, proposes. Like court expansion, jurisdiction stripping has the potential to trigger a retaliatory spiral, albeit one with a constitutionally specified endpoint.
Beyond the Supreme Court
As much attention as the Supreme Court gets, Leah Litman, a professor at the University of Michigan Law School, argues that Democrats should care just as much about reforming the lower courts, where a large majority of federal cases are decided.
In the past 30 years, the U.S. population has grown by almost a third, but no new Court of Appeals judgeships have been authorized. The Republican Party has been remarkably successful in filling these limited slots, in part by refusing to consider any of the seven nominees President Barack Obama advanced in the final two years of his presidency. Today, President Trump’s appointees account for about 30 percent of appellate court judges.
Given the role lower courts are playing even now in voting rights cases, Ms. Litman argues expanding them will be essential to safeguard the franchise. “At this point,” she writes, “the health and well-being of our constitutional democracy require Congress to exercise that power.”
Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.
MORE ON COURT REFORM
Unsure of which reform (if any) you support? Take a quiz. [Supreme Court Reform]
“The Republican Party’s Supreme Court” [The New York Times]
“Biden’s Proposed Bipartisan Commission on Court Reform Could Be a Hopeful Sign for Opponents of Court-Packing” [Reason]
“The Constitution Is the Crisis” [The New Republic]
WHAT YOU’RE SAYING
Here’s what one reader had to say about the last edition: The case against Google.
Josh, 20, from New York: “I think it is important to take down the big tech companies and stop them from having and abusing their monopolies. The problem is it’s hard to effectively move toward that goal unless we have a solution for what we want to force them to do; and the answer to that is far from simple.”
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