First, Do No Harm
Susan Sullivan Lagon | May 5, 2021
The Supreme Court, and potential reforms to it, are again in the national spotlight. In just one term, President Donald Trump left an indelible imprint on the federal judiciary by appointing 234 judges, 54 at the appellate level and three to the Supreme Court. Stung by Justice Amy Coney Barrett’s hasty confirmation in the waning days of the Trump administration, many Democrats floated the idea of adding seats to the Supreme Court, which has remained stable at nine since 1869. Then-candidate Joe Biden, dogged by inquisitive reporters, finally admitted that he was “not a fan.”
Maybe Biden’s wariness was out of fear of a tit-for-tat, where-does-it-end scenario in which parties take turns expanding the number of seats on the high bench to ensure a majority. Maybe it was due to his institutionalist’s predisposition to respect each branch’s prerogatives. Or maybe he wanted to avoid the opprobrium FDR encountered for his attempt to pack the Court during the New Deal. (Fun fact: Ultimately FDR was able to replace the entire bench of nine justices during his 12-year term.) Whatever his reasons, Biden promised to at least consider various proposals to reform the Supreme Court.
On April 9, 2021, Biden made good on his pledge with an Executive Order establishing a bipartisan commission to analyze “the principal arguments in the contemporary public debate for and against Supreme Court reform.” The commission consists of three dozen legal scholars and practitioners from differing political and ideological backgrounds. It is tasked with reporting its findings within 180 days—just in time for the midterm election campaign.
Within a week of Biden’s Executive Order, Sen. Ed Markey (D-MA) and Rep. Jerry Nadler (D-NY) introduced a bill to add four seats to the Supreme Court. Responding to the inevitable charge of court-packing Nadler noted that Congress has already changed the number of justices seven times in the nation’s history and insisted the bill doesn’t pack the court, “it unpacks it.”
Within minutes, Speaker Nancy Pelosi (D-CA) announced that she had “no plans” to bring the bill to the floor, preferring to wait and see what the newly established presidential commission finds. Noting that “it’s a big step,” Pelosi didn’t dismiss the idea outright and said it’s “not out of the question.” That same afternoon, Rep. Andy Biggs (R-AZ), the head of the House Freedom Caucus, introduced a constitutional amendment to maintain the size of the Supreme Court at nine justices. For the time being, the only thing less likely to go anywhere in Congress than the Judiciary Act of 2021 is Rep. Biggs’s proposed constitutional amendment. But that’s not the point. It’s about messaging.
ALL ABOUT THAT BASE
For both parties, the future of the Court could be a potent campaign issue for their respective bases. Republicans are eager to reap the rewards of the new 6:3 conservative-liberal alignment and hope to see outcomes they favor in cases dealing with abortion, gun ownership, and restrictions on voting rights, to name just a few issues currently before the Court. Democrats, meanwhile, are still mourning the loss of the late Justice Ruth Bader Ginsburg and worried that her legacy dealing with Amendment XIV’s equal protection for women, minorities, and the LGBTQ community could be undermined. They are also still smarting over Justice Barrett’s narrow eleventh-hour confirmation by Senate Republicans who denied then-Judge (and now Attorney General) Merrick Garland a justiceship during the last year of the Obama administration, saying the incoming president should be the one to appoint, not the soon-to-be outgoing president. Shortly after Justice Stephen Breyer spoke out against adding Supreme Court seats, some progressives launched a campaign encouraging him to retire so that President Biden could appoint a female, African American justice in his place while Democrats still have a nominal majority to confirm.
A SAMPLING OF REFORM PROPOSALS
Adding (or cementing) the number of seats on the Supreme Court is just one of the ideas being discussed in legal circles. Our last update on Court reform noted other variations on adding seats, such as Buttigieg’s 5-5-5 plan, and that some have considered term (or age) limits, which also exist in other countries. But a broader look at additional reforms is now possible with the commission. There’s a greater range of such ideas than just the court-packing language that has dominated the news, with some being more or less likely, and some aiming at ideological balance or bipartisanship.
Some of these suggested reforms are more theoretical than others. The “lottery court” proposal would rotate judges onto the Supreme Court, for short periods of time, chosen by lottery from the 180 circuit judges. This idea, put forth by legal scholars in 2019 and embraced by Bernie Sanders, is perhaps the most radical and least likely. It falls into the category of explicit attempts at nonpartisan reform (or reforms aiming for ideological balance). Another idea aiming at bolstering bipartisanship on the Court would be to require supermajorities in rulings. Given that this reform could be accomplished via constitutional amendment or imposed by the Court itself, it’s also not particularly likely.
The least radical of such reforms involve term limits, such as Ro Khanna’s bill to establish 18 year term limits for SCOTUS judges, which would allow the justices to continue their service on lower courts after their 18 years, thereby avoiding any conflict with the clause in Article III that judges are to serve “during good behavior.” Although this might be the most plausible of the proposals, it’s hard to imagine why any president would want to give up their legacy by limiting the number of years “their” appointees would be able to remain on the high bench.
Finally, reformers are considering an old idea that takes direct aim at protecting liberal priorities from a 6-3 conservative court: jurisdiction stripping. It is within Congress’s power to change the Supreme Court’s appellate jurisdiction. Recent Court rulings have not disallowed this. Recall the threats from Southern Democrats to strip the Warren Court of its ability to hear XIVth Amendment cases during the civil rights era. One idea would be for Congress to put cases involving voting rights (or restrictions on them) out of the Court’s appellate reach.
What, if anything, will reformers choose and Congress pursue? Liberals face a conservative majority on the Court, major issues such as voting rights in the crosshairs, a short window of time with unified government, and a Senate that, should the Republicans regain the majority, may not confirm Biden’s nominees. And yet, Speaker Pelosi made waves for immediately shutting down Rep. Nadler’s court-packing proposal. Democrats sense an emergency but those who expected lightning and thunder are disappointed. Finding a path back to bolstering the Court’s legitimacy and restoring balance is indeed a difficult path through a thorny thicket.
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