Supreme Court reform

President Joe Biden’s commission to review possible Supreme Court reforms recently ended in rather anticlimactic fashion. After months of debate, all they could agree on was that there was zero consensus on how to fix the court.

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Expanding the court would inevitably launch a spiral of escalation, resulting in an ever-growing Supreme Court and exacerbating the appearance of the court as a political tool. Meanwhile, imposing term limits may well require a constitutional amendment and, in any case, faces acute logistical hurdles in getting started

An ideal solution ought to have neutral political consequences in the short term and temper partisan passions in the longer term to strengthen the institution’s legitimacy before the public. Perhaps most importantly, as Supreme Court Commissioner Adam White put it in his statement about the commission’s work, any solution should encourage ongoing “self-reforms, undertaken with a spirit of self-restraint.” On the practical level, any reform proposal needs to be doable through legislation, not a hard-to-achieve constitutional amendment.

Our plan, similar to a concept suggested by University of Chicago law professor Daniel Hemel and relegated to a footnote in the commission’s report, achieves these aims and deserves greater attention: Allow the number of justices to float.

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The number of justices on the court was originally set at six in 1789 and rose to as many as 10 in 1863 before finally settling on nine justices in 1869; all of these changes were done through acts of Congress. [...] [A] better approach is to cast aside the notion of a defined court size altogether.

Unlike other proposals, ours also hits on the underlying source of much of what erodes the court’s legitimacy: the nomination and confirmation process itself.

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Whether you begin the story with the 1987 confirmation conflagration of Robert Bork, the hearings that never came in 2016 for Merrick Garland, or the events that ensued after Brett Kavanaugh was accused of sexual assault in 2018, the evidence is clear. These Senate confirmation battles dramatically alter perceptions of the court in predictably ideological and polarizing ways.

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It is certainly true that part of what has fueled the plummeting public standing of the court is its own rulings, but few structural reform proposals can hope to alter decisions themselves.

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Here’s how our proposal would work. Each president would get to appoint one (or perhaps two [...]) justice at some point in their first term. The beginning of the second year seems like a logical moment; it would be after they have had a stab at their principal legislative agenda and before any midterm referendums. If they get reelected, they would get to appoint another justice (or two) in their second term.

When vacancies arise by death or retirement, they would not (directly) be filled. The court might, therefore, have 10, 11, 12 or 13 justices, or it might have seven, eight, or nine. What this scenario would not have is the opportunity for one president to get to make more nominations than another, nor the opportunity for a justice to time their retirement to maximize the chances of an ideologically compatible successor, nor the opportunity for the Senate to hold open a vacancy until the next election to place such an explicit partisan referendum on the court.

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The question remains whether a president should get to pick one nominee or two. If the former, the size of the court would seem likely to grow inexorably smaller. Only one justice has ever served 36 years (the replacement rate for a nine-justice court with one appointment every four years), and while Justice Thomas seems likely to be the second, the average tenure probably will never exceed three decades. If the latter, the size of the court would, for a time, probably exceed nine unless justices started retiring at younger ages.

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On its own, that people vote based on the types of judges they would like appointed to the bench is not a problem; after all, we are an electoral democracy. But when the emergence of those vacancies is random or, worse yet, appears to be manipulated for ideological purposes by judges or politicians, the Flight 93 mentality that each election could have existential, generational consequences for the balance of the court is ever more pronounced (and not altogether wrong: that Donald Trump filled three seats in four years after each of his three predecessors filled only two seats in eight years was, well, inconsistent).

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For the justices, it would free them to retire when they want to, or to choose not to retire at all, allowing them to serve for as long as they feel they are contributing to the court. [...] If the court is as nonpartisan as Justices Samuel Alito, Barrett, Breyer and Clarence Thomas have recently made headlines for declaring, it would give them an opportunity for their actions to reflect their words.

For presidents, it would create predictability and a sense of fairness.

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For the public, it would channel passions about 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 — belongs to the citizens of our democracy, not to any particular justice. Rather than fill Justice Antonin Scalia’s seat or Justice Ruth Bader Ginsburg’s seat, we would be filling our seats in each new presidential administration.

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[U]nder this plan, the court would be as likely as not to have an even number of seats rather than an odd one. This might encourage more strategic maneuvering to build broader consensus for narrower decisions, and it might leave the Supreme Court occasionally deadlocked, thus leaving a lower court’s ruling in place. Neither seems likely to have a delegitimizing effect on the court broadly, and both might actually have modest, positive effects.

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Is there any guarantee a Senate of the opposite party would not hold up a president’s nominee after our proposal was implemented? No. But rather than our current system, where that outcome is coupled with uncertainty as to when the next vacancy might arise, this approach would let everyone know exactly when the next decision point arises and allow people to vote accordingly with the stakes clear.

  Politico