I Spent 7 Months Studying Supreme Court Reform. We Need to Pack the Court Now
I spent the last seven months on President Biden’s Supreme Court commission, talking, listening, and sometimes arguing with experts from a variety of legal backgrounds—activists, professors, and former judges. The system worked for me, but there were always ways to improve it. The outcome left me terrified. Our system is broken in two obvious ways, that threatens America’s self-governance. They both concern the legitimacy and long-term viability of the judiciary. One is a crisis that’s immediate.
Both of these problems are interrelated. Most of the first concern what you could refer to as high politics or theories about constitutional interpretation. The combination of Senate confirmation for Supreme Court and life tenure generates it. This means that Court composition does not always correlate with the results of presidential elections. There are some Presidents who appoint more Justices than others. Some have none. The combination of luck and political hardball determines the number of appointments that a president receives. This has led to a deterioration in the relationship between democracy and the Court.
Framers envisioned that the American people would, via the election of senators and presidents, have final, but indirect control over the Supreme Court’s composition. However, the Framers didn’t anticipate the party system and this throws a wrench into the works. A party which wins only a few presidential elections can still end up electing a majority number of justices under the current system. Even if a party does not win one of three, or even four, presidential election wins, strategic retirements can help to keep a majority. The result is a court that reflects minority views and values—not necessarily in a partisan political way, but in terms of Court’s approach to constitutional interpretation. You don’t have to think judges are politicians wearing robes in order to see the significance of judges. Judges appointed by Republican presidents generally vote and reason differently from those appointed by Democratic presidents—especially now that nominees are more carefully screened for ideological soundness. If a minority party nominates the majority of Supreme Court justices, it will likely issue decisions that are based on an incomplete understanding of the Constitution’s meaning and its proper interpretation.
Abortion is the most visible aspect of today’s problem. In general, Democratic appointees favor abortion rights. Republican appointees don’t. Although there is still the possibility of justices surprising us with their votes, it has decreased. Referring to Justice Thomas’s appointment as the longest-serving Justice at present, Democrats have won five of the nine Presidential elections, and seven out nine of those nine won the popular vote. But they have appointed just three of the nine currently sitting Justices. Thus it will not be surprising if the national majority’s view about Roe v. Wade does not prevail on the Court, even while national polls show strong majorities in support of preserving Roe. It is possible that the Republican advantage of 6-3 will continue for many decades, regardless of whether Democrats win more presidential elections.
This is the solution: staggered eighteen-year terms for Supreme Court Justices. Each president will receive two nominations each four years. That is a nonpartisan, good-government reform that has broad support—but not as much as it deserves. While it won’t immediately return the Supreme Court back to the level it was if the past presidents were equally influential, it will improve the system moving forward.
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This second problem is somewhat related but more complex. This problem is caused by our Constitution’s structure more broadly, which permits a well-placed minority to control every part of the federal government.
The electoral college, as we’ve seen over the years allows candidates to be elected president while still receiving the majority of popular votes. A rule that every state is equal in representation in the Senate allows Senators to control their respective chambers. The House of Representatives may be taken over by partisan gerrymanders. A president can nominate judges to be confirmed by Senators who represent a small percentage of the population. A minority that is in power can attempt to keep its place by distorting the democratic process through gerrymanders or voter suppression. The judicial invalidation and denial of efforts to safeguard voting rights may also be used to their advantage.
This all is taking place right now. This is a minoritarian takeover of democracy. Some anti-democratic acts have been met with resistance by the Supreme Court. The Supreme Court has permitted partisan gerrymanders to be used, which can distort elections for federal Representatives as well as state legislatures. (In Wisconsin in 2018, Democrats received 53% of the votes cast for the state Assembly—and won 36% of the seats.) As a result, states have been able to place voting burdens as a way to counter fraud threats. The Court also intervened in politics, which is more striking. The Court rescinded the Voting rights Act in 2013, which was for fifty years a safeguarding the participation of minorities. Recent months have seen states going even farther in reshaping their electoral systems, giving partisan officials more power to refuse to accept results they don’t like.
This is an issue of partisan political. This is the Republican party’s attack on democracy. The Supreme Court helps it. It is a partisan issue, so there are no good-government solutions. Without term limits, this would have been possible if the Supreme Court had not allowed the minority takeover to happen. If we enact term limits now, it may give rise to a Court willing to defend democracy rather than to undermine it. However, it’s not clear that time is a luxury.
This problem can be fixed by court expansion. This could result in a greater number of Justices willing to defend the democracy from these attacks instead of taking part. As a person who has always considered expansion to be a last resort and the fire axe on the wall, it was something I held with great skeptical. However, we might be in a position to break that glass. The playing field in our constitutional system tilts towards the minorities. This is not because wise Framers wanted it that way—they didn’t foresee political parties at all. Our political divide is well-mapped onto an urban-rural division, which means that Democrats tend not to control states with high populations and Republicans have lower-population state. The small-state bias in the Senate and the electoral college are now partisan. When you add in the effects of political gerrymanders, Democrats often need to win by several percentage points. They typically need several percentages more than the simple majority of national votes. This becomes even more likely when you consider voter suppression. Add in the attempts to delegitimize Democratic victories and the talk of gerrymandered state legislatures rejecting electoral results they don’t like, and the hill gets even steeper. Without taking decisive action we might be facing generations of minority control.
To be certain, there are also political considerations. Most often, the argument is made that Republicans will expand the Court if Democrats do. That’s possible, but battles over the court are already in a downward spiral of retaliation—just ask Merrick Garland. The game theory suggests that showing that you are willing to fight back is the best way to stop an opponent taking advantage of your weaknesses. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Able to reject any Obama nominee, and promising to give the same to Hillary Clinton if elected, is precisely that.
These two points should be taken away by everyone from the Commission report. Points that were presented and muffled with wishful bromides regarding neutral judges or myopic defence of the status quo. Expanding the court system may be what saves democracy.