By Abigail Hester
Associate Editor, Vol. 26
The Supreme Court is in crisis. With the death of Ruth Bater Ginsberg and the rushed confirmation of Amy Coney Barrett, the national attention is on the Supreme Court like never before.[i] Now is the time to act to reform the Supreme Court. Now is also the time to move past whether or not the court should be reformed, instead focusing on how. That’s a big topic, one we can’t fully unpack here. But I will introduce three proposals for court reform and an analysis of the merits for each.
There is nothing in the Constitution that determines the number of Justices on the Supreme Court.[ii] Congress has previously changed the number of Justices on the Court eight times, although 9 Justices has been the norm since 1869.[iii] An adjustment would require Congressional action, but would be one of the easier reform measures available.[iv] As such, it has become relatively popular, endorsed by various Democrats including Vice President-elect Kamala Harris.[v] Additionally, some of the attraction to this proposal is a kind of vengeance; new appointments would combat the ‘illegitimate’ appointments of Gorsuch (should’ve been Garland), Kavanaugh (sexual assault) and Barrett (rushed during an election season).[vi]
Detractors caution that this approach could result in a tit-for-tat partisan spiral that would dimmish any lingering legitimacy the Court may have.[vii] Additionally, while there is no explicit Constitutional text on the number of justices, certain scholars, such as Professor Richard Primus, point out that such measures are “not constitutional in the small-c sense of the term” because they “depart from long-settled norms and understandings about how American government is conducted.”[viii]
Norms aside, if the Democrats were to get into power and stay in power, there’s a chance that expanding the court could establish a new, progressive equilibrium. However, there’s an almost equal chance that no equilibrium is met, and the Court’s legitimacy gets thrown out the window. Expanding the court may have an easier political route, but the risks are high.[ix]
The “Balanced Bench”
This proposal would rethink how we choose Justices altogether. A “Balanced Bench” begins with 10 Justices, 5 chosen from each party.[x] Those justices would together select 5 additional justices to hear cases for the year, coming to a total of 15.[xi] This proposal is also known as the 5-5-5 plan.[xii]
This plan attempts to make the bench less partisan, since the 5 judicially elected Justices would need to be agreed upon by a quorum of the party-determined 10.[xiii] According to “Balanced Bench” proponents, rather than partisanship ruling the judiciary, ideological interests would instead rule the court. This idea was recently endorsed by Pete Buttigieg and is gaining popularity.[xiv]
The “Balanced Bench” proposal faces steep constitutional barriers for implementation. The Constitution’s Appointments Clause – which states that the President nominates and the Senate confirms justices – could kill the idea before it even gets off of the ground.[xv] By assigning seats to each party, this could enshrine, rather than dispense, the partisanship of the Court.
Applying term limits to justices has been a reform consideration for over a decade.[xvi] Term limits are currently one of the most popular measures for reform, perhaps because they are more easily understood by the public.[xvii] Since the Constitution is widely understood to grant life tenure to Justices, term limits could not impose retirement (without an amendment).[xviii] Instead, a current proposal would impose an 18 year term on serving on the Supreme Court.[xix] After the 18 years, Justices would then return to their previous judicial appointment.[xx] If the number on the Court remains at 9, there would be a vacancy roughly every 2 years.[xxi]
Proponents of this idea point to the increased regularity of new appointments it would encourage, rather than having to wait for Justices to retire or pass. Most recently, even Justice Breyer has expressed support for the idea.[xxii] However, such a change is not likely to improve public perception of the court in the short term, as the effects of term limits will not be seen for years. Additionally, the balance of the court would be necessarily tied to presidential elections, risking further enshrining the partisanship of the bench. Another consideration is the impact that this change would have on the Justices. If they knew their time was limited, they may be motivated to make more extreme decisions.
These efforts are laudable in their goals for a more progressive, democratic court. However, a progressive, democratic court will not be established through these measures alone. Along with structural reform, the composition of the judiciary needs to diversify. Compared with the rest of the country, the judiciary is exceptionally nondiverse.[xxiii] This lack of diversity entrenches both the favoritism towards the majority class as well as distrust in the system by minorities.[xxiv] As noted by Daniel Goldberg, legal director at the Alliance for Justice, “In an increasingly diverse country, citizens have a right to walk into a courtroom and see judges who are deciding life-and-death issues that look like them.”[xxv]
There is current debate between “saving” the Supreme Court[xxvi] and reevaluating the entire structure to create a progressive, democratic institution.[xxvii] In both views leaving the court untouched would be unacceptable. Over the past 25 years, the Court has shifted consistently to the right,[xxviii] tossing out voting rights litigation in Shelby County v. Holder,[xxix] refusing to rein in partisan gerrymandering in Rucho v. Common Cause,[xxx] and opening the floodgates for corporate spending in campaigns in Citizens United v. FEC.[xxxi] This shift has fallen harshly on the shoulders of already disadvantaged communities.[xxxii] Reform is necessary because “[w]e need a Supreme Court that envisions the Constitution as Ruth Bader Ginsburg envisioned it, as an engine of social progress instead of as a roadblock to structural reform.”[xxxiii]
[i] See Linda Greenhouse, The Supreme Court We Need, The New York Review (Nov. 5, 2020), https://www.nybooks.com/articles/2020/11/05/the-supreme-court-we-need/.
[ii] Todd n. Tucker, Off Balance: Five Strategies for a Judiciary that Supports Democracy 12 (Roosevelt Inst.) (2018), https://rooseveltinstitute.org/wp-content/uploads/2020/07/RI-Off-Balance-201811.pdf [hereinafter RI Report].
[v] Debra Weiss, Idea of Court Packing Gains Traction Among Some Democrats, ABA Journal (Sept. 22, 2020), https://www.abajournal.com/news/article/idea-of-court-packing-gains-traction-among-some-democrats-are-there-alternatives.
[vi] Elaine Godfrey, The Democrats’ Supreme Court Hail Mary, The Atlantic (Sept. 24, 2020), https://www.theatlantic.com/politics/archive/2020/09/democrats-case-court-packing/616446/.
[vii] Joshua Braver, Court-Packing: An American Tradition?, BC L. Rev. Forthcoming 2021.
[viii] Richard Primus, Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal, Harv. L. Rev. Blog (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-constitutional-analysis-of -the-calabresi-hirji-judgeship-proposal.
[ix] Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J 148, 176 (2019).
[xiv] Benjy Sarlin & Lauren Egan, The Hot New Dem Plan to Score Policy Wins, NBC News (Mar. 16, 2019), https://www.nbcnews.com/politics/2020-election/hot-new-dem-plan-score-policy-wins-change-rules-game-n983456.
[xvi] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV.J.L. & PUB. POL’Y 769 (2006); Roger C. Cramton, Reforming the Supreme Court, 95 CALIF. L. REV. 1313, 1323-24 (2007).
[xvii] New Poll: Americans Still Prefer Supreme Court Term Limits to Court Packing, Fix the Court (June 25, 2019), https://fixthecourt.com/2019/06/new-poll-americans-still-prefer-supreme-court-term-limits-court-packing/.
[xviii] Matt Ford, A Better Way to Fix the Supreme Court, New Republic (June 4, 2020), https://newrepublic.com/article/154047/better-way-fix-supreme-court.
[xxii] Staci Zaretsky, SCOTUS Justice Talks Court-Packing, Term Limits, Retirement, Above the Law (Apr. 23, 2019), https://abovethelaw.com/2019/04/scotus-justice-talks-court-packing-term-limits-retirement/.
[xxiii] Greg Goelzhauser, Diversifying State Supreme Courts, 45 L. Soc. Rev. 761, 770 (2011).
[xxiv] Danielle Root & Sam Berger, Structural Reforms to the Federal Judiciary, Center for American Progress (May 8, 2019), https://www.americanprogress.org/issues/courts/reports/2019/05/08/469504/structural-reforms-federal-judiciary/.
[xxv] Li Zhou, Trump has gotten 66 Judges Confirmed this Year, Vox (Dec. 27, 2018), https://www.vox.com/2018/12/27/18136294/trump-mitch-mconnell-republican-judges.
[xxvi] Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J 148 (2019)
[xxvii] Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 CAL. L. REV. __ (forthcoming 2021).
[xxviii] Matthew Yglesias, Brett Kavanaugh’s Confirmation will Delegitimize the Supreme Court – and That’s Good, Vox (Oct. 5, 2018), https://www.vox.com/2018/10/5/17941312/brett-kavanaugh-supreme-court-legitimacy.
[xxix] Shelby County v. Holder, 570 U.S. 529 (2013).
[xxx] Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
[xxxi] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
[xxxii] RI Report.
[xxxiii] Linda Greenhouse, The Supreme Court We Need, The New York Review (Nov. 5, 2020), https://www.nybooks.com/articles/2020/11/05/the-supreme-court-we-need/.