The battle over the Supreme Court: Don’t pack but reform

“Dissents speak to a future age. It’s not simply to say my colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today but for tomorrow.”

Ruth Bader Ginsburg

“If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.”

Ruth Bader Ginsburg

“I do think that being the second female Supreme Court Justice is wonderful, because it is a sign that being a woman in a place of importance is no longer extraordinary.”

Ruth Bader Ginsburg

Rather than embracing the idea of liberal court packing, Democrats must push for comprehensive structural reforms.

Following the death of feminist liberal icon Ruth Bader Ginsburg, president Trump nominated conservative judge Amy Coney Barrett to the Supreme Court. If confirmed by the Senate, she would become his third appointee to the highest court in the land and would give conservative judges a two thirds majority on the bench. Democrats understandably fear that the judiciary will frustrate their progressive agenda, even if they triumph in November. Given Senate majority leader Mitch McConnell’s norm defying behaviour, these fears are hardly unfounded. When president Obama nominated moderate judge Merrick Garland in 2016, the US was 8 months away from an election, prompting McConnell and his henchmen in the upper chamber to shirk their constitutional responsibility entirely by not granting Obama’s nominee at least a courtesy hearing. While it is true that confirmation hearings have always been contentious, and the Supreme Court was politicised right from its inception, what the Republican majority did in 2016 was unheard-of. Even conservative legal scholars urged the Senate to at least allow Garland to be questioned on the judiciary committee. However, they did so to no avail. Now, the country is only weeks away from a presidential election, and the majority party has no qualms about waving through another Trump nominee. The arrogance and cynicism with which McConnell makes a mockery of his own words he uttered just four years ago and undermines basic democratic norms and sensibilities is breathtaking. Indeed, it is not Trump that threatens democracy in America – politicians like McConnell are the much more dangerous ones. But why would Senate Republicans be prepared to endure the likely political backlash, especially since many polls suggest that most Americans want to have their say on the issue? There are likely two reasons for this. Republicans may hope that the noise surrounding Barrett’s elevation to the top court will motivate Trump’s electoral base in sufficient numbers to get him over the line in important swing states. But the political manoeuvrings have become so toxic over the years that a much more mundane reason is likely: most Senate Republicans might believe that Trump will lose in November, ad that Democrats could take back the Senate. So they bargain that a conservative judiciary will ensure that Republican, Trumpian policies survive, even if this means a blatant disregard for the most basic of democratic principles – the right to vote.

The continuous erosion of the Supreme Courts’ legitimacy is not just the result of some right-wing partisan hacks involved in tantrum-throwing political brinkmanship on Capitol Hill. Since many recent controversial decisions were out of sync with majority popular opinion in the country, the court itself bears much of the responsibility for its diminished public standing. Two rulings stand out. The infamous Bush v Gore decision in 2000 halted the election recount in Florida and handed the presidency to Republican George W. Bush. Rather than endeavouring to ascertain what voters had decided on Election Day, it was the top brass of the judiciary that determined the result. Equally devastating was the Citizens United ruling in early 2010, reversing century-old campaign finance restrictions, allowing corporations and other outside groups to spend unlimited funds on elections. Again, it was the Supreme Court that allowed the US to further dissent into plutocracy. As Robert E. Mutch has illustrated in his book Buying the Vote: A History of Campaign Finance Reform, until the early 20th century at least, Congress recognised that democratic self-government goes hand in hand with political equality. Efforts to keep corporate money out of politics were not at all controversial at the time. Attempts to reach bipartisan consensus on new measures restricting the ability of corporations to pollute the electoral process with money were as recent as the early 21st century. Not politicians but US Supreme Court Justices buried any hopes of reforming campaign financing for possibly generations to come. With the Supreme Court becoming more and more a partisan player in the political process, and with Conservative Justices holding sway, Democrats and progressives demand payback. While it is true that adding additional judges to the bench is not unconstitutional, most legal experts caution those seriously entertaining the idea that the number of Justices sitting on the Supreme Court has become a “soft constitutional norm.” Changing it would run into political difficulties. To begin with, Democrats would have to win not just the White House in November but would also have to capture the Senate by a decisive margin, and, as recent modelling suggests, such an outcome is far from certain. Furthermore, even if Democrats win in a landslide and take control of the presidency and both Houses of Congress, tinkering with the size of the Supreme Court will likely be perceived as a partisan move, igniting the culture wars even more and serving as a rallying cry for conservatives and possibly even moderate independents. The historic evidence on the matter is also not encouraging. Frustrated by a conservative leaning court in the mid1930s, which had struck down many of his New Deal measures, president Franklin Roosevelt introduced a bill that would have expanded the Supreme Court to as many as 15 judges. Even though the reform bill died a slow and painful death in Congress, historians remain ambiguous as to whether Roosevelt truly lost this political battle. His scheme came to nothing, but the court moderated its stance on forthcoming New Deal legislation by approving measures on a minimum wage, social security and the National Labor Relations Act. What motivated conservative Justice Owen Roberts to side with the more liberal judges will likely never be known. Proponents of Roosevelt’s court reform plan believe that “Switch in time that saved nine” Lay behind Robertses reasoning. Detractors contend to this day that the judge had different reasons for changing his position on the New Deal. Aziz Huq, an expert on legal matters at the University of Chicago, raises another intriguing question for progressives to consider. To what extent is it sensible to place their faith in the judiciary at all? “the federal courts were conceived in a moment of deep suspicion of democracy, deep suspicion of the potential that democracy had for redistribution away from property elites and were seen as a check on redistribution. they were seen as a way of protecting property rights. that is hardwired into the constitution. that is not just the case in the United States. The best comparative constitutional work on the role of courts describes the function of courts, and I will use a bit of jargon, as hegemonic preservation. You see supreme courts being included in both democratic and autocratic constitutions. There is nothing democratic – nothing democratic – about supreme courts. You see them as ways of entrenching the interests of elites that are dominant at the moment of constitutional creation. By design, by function and by history, courts are not the progressives friend.” Indeed, as any careful reading of the much acclaimed Federalist Papers shows, the founding fathers didn’t care much for democracy. They were obsessed with one thing only: protecting property rights.Yet, unless revolutionary change were to occur, courts will continue to exercise enormous power, and progressives can ill afford not to engage their opponents in this battle.

Three proposals are currently gaining traction and are hotly debated in law schools throughout the country.

A balanced bench

The most innovative and bold proposals have been crafted by law professors Daniel Epps and Ganesh Sitaraman. Writing in the Yale Law Journal, they put forward two ideas: a Supreme Court lottery and a balanced bench. In the first case Supreme Court Justices would be drawn from the lower federal circuit courts and would serve a relatively brief term before returning to their previously held positions on the lower courts. In the second instance, the court would be expanded to 15 Justices, with Republicans and Democrats having 5 appointments each. These judges would sit for life, but, in order to reach quorum, they must unanimously choose 5 ‘moderate’ judges who would sit and hear cases for a fixed term. This particular proposal has become known colloquially as 5-5-5. Both of those ideas would help depoliticise the court, as there is a strong incentive for moderation and cooperation on the bench. John Grove, associate editor of Law & Liberty, has debated the pros and cons in his piece Reforming the Court. While not foolproof, he argues that both proposals have a lot going for them and might appeal to a conservative constituency as well, a prerequisite for making any reform endure.

“Both of these basic reforms, if they were to be crafted and implemented in a careful manner, could address longstanding conservative complaints against the Supreme Court. They are designed to restrain judicial activism and make it less likely that the court’s definitive interpretations will simply be the outgrowth of the subjective values of five justices. they offer a strong incentive for justices to rule narrowly and appeal to arguments, like those based on clear textual meaning, that are convincing to judges who do not share their ideological proclivities.”

Reforming the Court, National Affairs.

But what sounds great in theory may still be difficult to apply in practice. First, the notion of ‘moderate’ judges is highly problematic. One Justice might be a moderate in one particular area of the law, but may espouse absolutist positions on other matters. Second, the right to appoint judges is solely vested in the presidency alone, and it is difficult to see how either a “circuit rotation court” or a “concurrent majority court” can be reconciled with the provisions in Article II.

“The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: butter Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

US Constitution, Article II.

In lawyerly fashion, Epps and Sitaraman attempt to find a way around this by stating that the visiting Justices would be inferior officers, and their appointment therefore can be deferred to Congress. Might this work? Who knows. But it is worth keeping in mind that in the end it will be the Supreme Court in its current form that would have to render judgement on the constitutionality of their proposals. Who of the 9 Justices would agree to have their power and influence curtailed?

Staggered terms

Nowadays, no legal scholar in the US would advise a modern country drafting a new constitution to adopt life tenure for its judges. In fact, none of the 50 States does it, and life terms are not applicable to federal appeal court judges either. Being a relic of the past, Roger Cramton, Professor at Cornell Law School, has argued strongly in favour of term limits, and has also taken the trouble to discuss possible constitutional hurdles, like the good behaviour and compensation clause.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behaviour, and shall, at stated times, receive for their Services a Compensation, which shall not be diminished during their continuance in Office.”

US Constitution, Article III.

However, Cramton believes there is a way around this clause, namely senior status for retiring judges. Being established by statute, deemed constitutional and practiced in federal circuit courts, senior status allows judges to retire once they reach the age of 65 and satisfy the rule of 80 – that is 65 plus the years they served on the bench must reach the magic number of 80. Either at their own discretion or the discretion of the chief judge on their circuit, these senior judges still hear cases and draw a full salary. Fix the Court, a bipartisan group strongly advocating reform, has drafted the most detailed proposal thus far, and term limits have attracted conservative support as well. Under the proposal, Supreme Court Justices will be appointed for a term of 18 years, and, as the terms will be staggered, each president will have to appoint at a minimum two and at a maximum four Justices, depending on whether they serve one or two terms in office. Randomised appointments due to luck and circumstance would become a thing of the past. Yet, because term limits can only be brought in prospectively, there will be no immediate political payoff. Also, even the proponents of term limits concede that the political nature of the court will be left untouched. Some fear that hyperpartisanship surrounding Supreme Court nominees might drastically increase. though they hope their proposal will at least make for a better court. Laurence Tribe, a renowned legal scholar at Harvard Law School and a strong supporter of term limits in theory, told The Nation’s outstanding legal correspondent Ellie Mystal, “For several years, I was inclined to favor term limits, but I’m increasingly doubtful that the Supreme Court, as is currently composed, would agree that Article III can be interpreted the way it would have to be in order to make Supreme Court appointments terminable after a fixed number of years. That, in turn, suggests that the massive effort and political capital that would be required to get a federal statute enacted limiting the terms of Supreme Court justices just wouldn’t be worth it.” Another question then arises: are we back to square one?

A third way

Mystal is convinced that in the end Democrats will have little choice but to add additional Justices to the bench. But in order to minimise the political fallout, he calls on progressives to enact further reforms that, if adopted, would ensure that decisions rendered by the Supreme Court enjoy greater legitimacy overall. If modelled on the circuit courts, judges would hear cases on a panel of say three. The panel would be randomly chosen. For a case to be heard en banc, a majority of all judges must agree to do so. If the evidence of inferior federal courts is anything to go by, this will be highly unusual as most judges on the panel will try to rule as narrowly as possible to allow their colleagues to sign on to any decision reached. Since the highest court in the land is the only one currently not operating under any ethical guidelines, Mystal argues that this is a third reform which must be enacted as soon as possible. Chief Justice John Roberts, a conservative but far-sighted and wise judge, is rumoured to seriously consider the issue.

In remembrance of the late Justice Ruth Bader Ginsburg, let’s pause and reflect upon what she had to say about the necessity to restore some of the bipartisanship when confirming judges for the Supreme Court. “Things have changed, and it shows up on both sides of the aisle. My now Chief, Chief Justice Roberts, had all the qualifications one could want in a Supreme Court Justice- a number of negative votes from some Democrats – and my excellent colleagues Sotomayor and Kagan again multiple negative votes, divisions along party lines. I don’t know what it will take, but we really should get back to the way it was when people were examining the qualifications of someone to be a judge, rather than trying to guess how they would vote on contentious cases. I mean there will be great statespeople on both sides of the aisle who will say enough of this nonsense; let’s do the work that we were elected to do for all of the people of the United States. I hope I will see that Restauration in my lifetime.” Sadly, her wish was not granted, and common sense has until now alluded policy makers in Washington. Therefore, it is the duty of progressives to honour her legacy by speaking the language of bipartisanship when making their pitch for a changed modus operandi of the Supreme Court. Only then will it sell at the doorstep. Progressives might find it hard to stomach, but, if they are to succeed, there has to be something in it for Republicans as well. If a future president Biden accumulates enough political capital, he might be the right person to make the case to voters.

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