Opinion | Don’t Pack the Court. Allow the Number of Justices to Float.

The ideal solution should have neutral political consequences in the short term and mitigate partisan sentiment in the long term to enhance the legitimacy of the institution in front of the public. Perhaps most importantly, as Supreme Court Commissioner Adam White said in his statement on the commission’s work, any solution must encourage “continued self-reform, undertaken in a spirit of restraint.” On a practical level, any reform proposal should be enforceable through legislation, not a hard-to-achieve constitutional amendment.

Our plan, similar to the concept he proposed Professor of Law at the University of Chicago Daniel Himmel And its inclusion in a footnote in the commission’s report accomplishes these goals and deserves greater attention: allowing the number of judges to float.

As many have pointed out during the ongoing reform debate, the Constitution says nothing about the size of the Supreme Court. The number of court judges was originally limited to six in 1789 and increased to as many as 10 in 1863 before finally settling on nine in 1869; All of these changes were made through acts of Congress. While some use this as an argument in support of increasing the size of the court (conveniently only large enough to tip the ideological balance in one’s preferred direction), a better approach is to set aside the idea of ​​a specific court size altogether.

Unlike the other proposals, ours also touch on the very source of much of what undermines the Court’s legitimacy: the nomination and confirmation process itself.

Whether the story began with Robert Burke’s 1987 confirmation fire, the 2016 missed hearings by Merrick Garland, or the events following Brett Kavanaugh’s sexual assault accusation in 2018, the evidence is clear. These Senate confirmation battles are dramatically changing perceptions of the Court in predictable ideological and polarizing ways.

Whenever base erosion begins and whoever is responsible, the destabilizing politicization of the Supreme Court has reached its peak. First, the 60-vote threshold for lower court Senate candidates fizzled out, followed a few years later by the stalling end of Supreme Court nominees. After announcing the election date was approaching 10 months before new justice was confirmed when the president was from the other party, the Republican-controlled Senate was happy to confirm Justice Amy Connie Barrett less than 10 weeks before the 2020 presidential election. The Liberals are clamoring for Justice Stephen Breyer to retire so Biden can name a successor before the Senate has a chance to change power in 2022.

Each of these events was motivated by individuals outside the court itself; The judges themselves had no control over the way these actors treated the court, but the outcome directly undermined its standing.

The institutional legitimacy of the Supreme Court depends entirely on the respect it receives from other branches of government and the public at large – its reservoir of goodwill, which has been stored for the past 232 years. This goodwill allowed the Court to survive its most contentious decisions, but a recent prolonged political struggle by the Senate has pushed the Court to the brink of an institutional crisis.

To be sure, part of what fueled the court’s deteriorating public position is its rulings, but few structural reform proposals can hope to alter the decisions themselves. The best hope is to create incentive structures that reflect Madison’s ideals of ambition to counter ambition within government while mitigating the trauma inflicted on it by events outside the court’s control.

Here’s how our suggestion would work. Each president must appoint one judge (or perhaps two, more than that in a minute) at some point in his first term. The start of the second year seems like a logical moment. That will be after they have a stab at their main legislative agenda and before any midterm referendums. If re-elected, they will have to appoint another judge (or two) for their second term.

When vacancies arise due to death or retirement, they will not be filled (directly). So a court may have 10, 11, 12, or 13 judges, or it may have seven, eight, or nine. What is this scenario? Not You have no opportunity for one president to get more nominations than another, no opportunity for justice in timing their retirement to maximize the chances of an ideologically compatible successor, no opportunity for the Senate to open a vacancy until the day after the election to conduct such an explicit partisan court referendum.

For judges, it would allow them to retire when they wanted to, or choose not to retire at all, allowing them to serve as long as they felt they were making a contribution to the court. If the justices themselves feel strongly that a certain size of court is appropriate, they will be free to set standards – formal or informal – around retirement age, with senior judges retiring when the court reaches a certain size or retiring in pairs via ideology. Domain. If the court is as non-partisan as Justices Samuel Alito, Barrett, Breyer and Clarence Thomas who have recently made headlines for their announcement, it will give them a chance for their actions to reflect their words.

For bosses, this will create predictability and a sense of fairness. A frequent criticism of state limits is that they make judicial appointments too explicit as a prize for winning the presidency. Could a similar criticism be leveled at our proposal? Sure – but this dynamic is just as present in the current system, where vacancies arise either randomly or strategically, as in a place where they arise predictably and equitably.

For the public, it would channel sentiment around judicial appointments into a predictable cycle where the stakes are consistent from election to election. More importantly, both practically and symbolically, it would reflect the idea that the Court – and each of its seats – belonged to the citizens of our democracy, and not to any particular justice. Instead of taking the seat of Judge Antonin Scalia or the seat of Judge Ruth Bader Ginsburg, we will be satisfied for us Seats in every new presidential administration.

For some practical matter, this proposal could be implemented through legislation in Congress and would not require a constitutional amendment. It is also true that under this plan, the court would probably not have an even number of seats rather than an odd number. This may encourage more strategic maneuvers to build broader consensus for narrower decisions, and may sometimes leave the Supreme Court deadlocked, thus leaving a lower court’s ruling in effect. Neither seems likely to have the effect of widespread delegitimization of the court, and both may in fact have modest positive effects. It is true that there is nothing in this proposal that would directly alter the existing incentives to nominate young justices to maximize their tenure on the Court. But eliminating the need for strategic retirements may make it a little easier for presidents to name more “middle-aged” candidates with more diverse professional experiences for the court. At the very least, it will not exacerbate the current trend towards young candidates.

The question remains whether the president should choose one or two candidates. If the former, the size of the court seems likely to grow inexorably. Only one judge has served 36 years (the replacement rate for a court of nine justices with one appointment every four years), and while Judge Thomas appears to be the second, the average tenure likely does not exceed three decades. If the latter, the size of the court will, for a time, probably exceed nine unless the judges begin to retire at a younger age. Having two vacant vacancies simultaneously may also encourage presidents to nominate at least one candidate who is less ideologically aggressive to help increase the likelihood of Senate ratification, thus filling a court that is more ideologically balanced across the spectrum.

In our current trajectory, the Supreme Court is rushing down a persistent cliff in public confidence, with the Court seen as a blatant partisan representative.

Increasingly, Democrats are waking up to what Republicans have long known: judicial appointments can be a powerful grassroots mobilizing factor. By itself, people voting based on the types of judges they wish to appoint to the court is not a problem; After all, we are an electoral democracy. But when the emergence of these vacancies is random or, worse, appears to have been manipulated for ideological purposes by judges or politicians, the Flight 93 mindset that every election can have existential and generational consequences for the court’s balance becomes clearer than ever It went (and not entirely wrong: Donald Trump held three seats in four years after each of his three predecessors held only two seats in eight years was, well, inconsistent).

Essentially, no reform proposal can “solve the problem” of the court’s legitimacy. All we can do is create institutions that incentivize self-control, reciprocity, and ambition that run counter to the ambition consistent with Madison’s long-standing ideals. Is there any guarantee that the Senate of the other party will not block the presidential nominee after implementing our proposal? No. But instead of our current system, where this result is combined with uncertainty about when the next vacancy will appear, this approach will let everyone know exactly when the next decision point appears and allow people to vote according to stakes.

In Federalist No. 10, James Madison is best known for presenting the argument that burgeoning factions will confront each other, which has led to a moderate policy based on debate and compromise. But partisan politics today has reached a point our framers could not have imagined. We see little substantive debate and even fewer concessions, and this controversy is now engulfing the Supreme Court.

Our proposed solution honors founding-era ideals by ensuring that judges remain insulated from political retaliation—a federal imperative—while bringing nominations to court at regular and predictable events—the anti-federal imperative. Perhaps most important of all, this setup allows voters to make an informed decision at the ballot box while reducing incentive for senators to treat the court as just another political stepping stone in their quest for re-election.

Leave a Comment