Supreme Court Appointments: Reform or Revenge?

Susan Sullivan Lagon | October 7, 2020

Justice Ruth Bader Ginsburg’s passing on September 18th reverberated throughout the nation and our institutions.  Mourners congregated at the Supreme Court immediately following the news, with Mitch McConnell’s statement that the Senate would vote on President Trump’s nominee coming just over an hour after the Supreme Court’s announcement. The prospect of Judge Amy Coney Barrett—the 48-year-old Scalia protégé, former Notre Dame Law professor, and mother of seven—joining the Supreme Court delights Republicans, who point out that she has already been vetted in 2017 when she was confirmed to the U.S. Court of Appeals for the 7th Circuit. In the days to come, nomination norms, policy implications, and potential Court reforms should be considered as generational changes happen at a break-neck pace.

Nomination Norms

 Democrats, meanwhile, are crying foul, citing the hypocrisy of Senate Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chairman Lindsey Graham (R-SC) who refused to even consider D.C. Circuit Judge Merrick Garland’s nomination to the Supreme Court during the last year of Obama’s presidency. Judge Garland was nominated after Justice Scalia’s death with 269 days until the election; there are just 46 days between Justice Ginsburg’s passing and Election Day.  While it may be unseemly to ignore Justice Ginsburg’s dying wish that her successor not be named until after the election, ramming a nomination through the Senate on a close party-line vote with mere days left is not unlawful even though the harm to what’s left of comity in the Senate may be irreparable.

Policies at Stake

But far more alarming to Democrats than the timing of Barrett’s appointment is the resulting 6:3 conservative-to-liberal composition of the Court if/when she is confirmed. That the fate of the Affordable Care Act, gun control, access to contraception, abortion, LGBTQ rights, reapportionment, immigration policy, voting rights, and possibly even the outcome of the presidential election all hang in the balance underscores the Democrats’ dismay. In terms of jurisprudence, the shift is akin to Justice Clarence Thomas replacing Justice Thurgood Marshall 30 years ago.

Court-packing Reforms: History & Current Proposals

Like the Electoral College and the filibuster, Supreme Court appointments are a perennial favorite target for reformers, especially those whose party stands to benefit from change. Article III gives Congress ample room to tinker with the judiciary by “creating inferior courts,” altering the number of justices on the Supreme Court, and stripping courts of their appellate jurisdiction in certain cases. Recently some Democrats have raised the idea of “court packing” in response to a realigned Supreme Court. Presidential nominee Joe Biden has been conspicuously silent on the topic and polling finds a majority opposed, perhaps because it seems underhanded and hasn’t been tried since FDR’s unsuccessful attempt in 1937.

Whether they gain traction remains to be seen, but two court-packing plans are worth noting for explicitly taking ideology into account. Former Democratic presidential candidate Pete Buttigieg made judicial reform a major part of his campaign with the “5-5-5 plan,” which would expand the Supreme Court to 15 with 5 justices associated with Democrats, 5 with Republicans, and 5 chosen by the other 10. Even more radical is an idea from Elie Mystal, justice correspondent at The Nation. His plan: Add 10 justices for a total of 19 and have them hear most cases in panels like the lower federal courts do.

Length of Tenure Reforms: Other Nations & Current Legislation

Rather than change how many serve on the Supreme Court, other reforms focus on how long justices should serve. Although it smacks of ageism, at the very least this would eliminate some of the arbitrariness that comes from not knowing when a vacancy might occur. Article III (theoretically) insulates federal judges from political pressure by establishing that they serve “during good behavior,” which in practice has meant “as long as they wish.” This is an oddity among democracies. Retirement is mandatory for judges in Canada at 75 and in Australia it’s 70. In 1959, the U.K. did away with “during good behavior” in favor of 75.

Critics say that mandatory retirement for federal judges in the U.S. would require a constitutional amendment to avoid running afoul of Article III. But proponents say there is already a model in place that passes constitutional muster while accounting for age: Senior status. This arrangement is offered to judges who reach age 65 and satisfy the “Rule of 80,” meaning their age plus number of years in service on the federal bench equals 80. Almost a third of Circuit Court judges have senior status. They take cases, are paid full salary, and continue to serve “during good behavior,” just not as much.

Most judicial reform proposals never make it farther than college classrooms or law review articles. One that’s been proposed as actual legislation is the Supreme Court Term Limits and Appointments Act introduced in the House on September 29, 2020. Endorsed by the group Fix the Court, it calls for an 18-year term for Supreme Court justices, exempting those already serving. Retired justices would fill in during unexpected vacancies and new appointments would take place at regular intervals during non-election years. The idea is hardly new. In 1983, a young lawyer in the Reagan White House wrote in a memo, “Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.” Twenty years later, he would become a federal judge himself. Since 2005, he has been Chief Justice of the United States. Coincidentally, John Roberts turned 65 this year and has served as Chief Justice for 15 years.


This nomination will have far-reaching consequences, regardless of whether any such reforms are enacted.  Given recent nomination history, it is an open question whether any President will be able to confirm a Supreme Court nominee if the Senate is held by the opposing party. It is hard to overstate the blow to Senate norms and function.  A conservative majority Supreme Court has profound and long-term policy implications, with the Supreme Court becoming more significant for policy as Congress legislates less.  While court-packing à la FDR is unpopular and would escalate partisanship further, other court reforms could serve to both add stability to the Court while preserving balance between branches of government.  As it stands, the Senate’s actions serve to undercut its own power.



Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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