The Court Risks Illegitimacy
When Donald Trump won the presidency, he won it at a critical moment in judicial history. It was at this time that Mitch McConnell blocked a vote for Barack Obama’s Supreme Court nominee Merrick Garland. No vote was called and McConnell reasoned that a president cannot appoint a judge in his last term. A rule that he has disregarded recently. His infidelity to his own rule is prominent because a liberal justice, Ruth Bader Ginsburg is 86 years old.
To go through some scenarios. Maybe President Trump would appoint a liberal justice to maintain a 5–4 balance, though in favor of conservatives it legitimizing the appearance of impartiality legitimizing the Court itself. Something Chief Justice Roberts has taken as sort of mission defending the impartiality of supreme court justices while Trump tweets his requested court decisions.
The real fear is that at its root the public is losing its confidence in the Supreme Court and its hard to disentangle this from the very notion of public confidence in the Rule of Law.
To understand the way Americans feel about the Supreme Court, it depends on who you ask. In 2014 Gallup reported that Americans were losing confidence in all branches of the U.S. Gov’t. This same year the Supreme Court reached record lows finding that only a slight majority of Americans, 54%, approving of the job they were doing.
The Christian Science Monitor reviewed a 2018 Gallup poll drawing more optimistic conclusions finding “that 37% of Americans have a great deal of confidence in the Supreme Court while another 42% have ‘some’ confidence.” That would seem to add up to 79% of Americans approving. The National Review writer Ramesh Ponnuru backed up this sentiment writing “Confidence in the Supreme Court Grows” on October 24, 2019.
On the other hand The Federalist wrote “Americans are losing Confidence in the Supreme Court”
Finally and reassuringly Scotusblog rectifies these scattered findings bringing them together with“recent polls show confidence in Supreme Court, with caveats.”
Scotusblog reports that confidence is split along ideological lines with 52% of conservatives responding they have a high confidence in the court while only 31% of liberal voters have high confidence compared with 36% reporting low confidence. Gallup’s recent polls backs this up saying that 73% of Republics approve while only 38% of Democrats do.
This split signals the partisan nature the Court today represents as well as an example of the successful conservative campaign. At the same time Chief Justice Roberts is struggling with shifting public perception.
Kathleen Hall Jamieson, director of the Annenberg Center lays out the mythology of the court when she says “the well-being of our system of government depends on the integrity of an independent, impartial, fair judiciary and on the public perception that judges honor these expectations.”
In this way the Supreme Court is supposed to be free of politics. This is the base ideological starting point of all our starry eyed hopes and dreams for the existence and discovery of objective truth. Chief J Roberts echoed this sentiment when he said “We do not have Obama judges, or Trump judges, Bush judges, or Clinton judges.”
Annenberg Public Policy Center supports this mythology when they write that “Most Americans Trust the Supreme Court, But Think It Is Too Mixed Up In Politics” and “suggesting that the distinction between judges and elected politicians is becoming blurred.”
What has caused this?
Enter Antonin Scalia, a towering legal figure whose garrulous demeanor was matched equally by the rhetoric of his opinions. Whether writing for the majority, or a scathing dissent, Scalia stood for a certain type of conservatism and adherence to the Constitution as a strict textualist interpreting issues by directly consulting the words of the Constitution as a starting point and deferring to earlier interpretations.
Scalia died in 2016 and President Obama appointed moderate Judge Merrick Garland.
What Mitch McConnell did was unprecedented. He refused to call a hearing to vote for Merrick Garland and the Supreme Court was effectively reduced to eight justices for an entire term.
McConnell’s rationale was that a President in their last year in office should not be allowed to appoint a new Supreme Court justice. The delay paid off when President Trump won the election appointing two young conservative justices insuring the Court will be conservative for the next generation.
What’s clear for liberals: when they lost the presidential election in 2016, they lost an opportunity to shape policy for a generation. The Supreme Court is lost, maybe abortion rights too, and any liberal agenda a future president or congress puts forward will inevitably be struck down by a conservative Supreme Court.
Another potential move is that Trump appoints another conservative justice tipping the court further to the right establishing a new ideological spectrum potentially pulling a more liberal conservative justice to the center.
A move likely applauded by Chief J Roberts to maintain the appearance of impartiality.
What’s important is that people like process. Process shades a veil over the proceedings, gives it importance and gravity. When outcomes are determined appearances shatter. The appearance of impartiality is more necessary than actually being impartial. Thus from time to time Chief J Roberts will throw a scrapping of meat to keep the liberal hounds at bay.
The Case for Reform
What’s frustrating about the liberal approach is that in 2016 they seemed to completely forget about the judiciary. Conservatives noticed and filled this void.
Donald Trump, when campaigning for the presidency, released a list of potential nominees and this in part played a role in getting him elected. This too is part of his agenda he’s been loyal too. Republicans have rewarded him with an unwavering loyalty.
Liberals have finally taken notice. Probably because of shrewd documentary directors leading a media blitz in 2018 building on the already angelic mythology of RBG sparking an interest somewhere in the recesses of minds normally consumed by social justice outrage.
During the 2020 presidential campaigns, democratic candidates paid attention too. Mayor Pete embraced court packing while Biden and Sanders’ approaches remain unclear. While it’s likely we will forget about court reform in the likely reelection of Donald Trump. It gives us four years to consider alternatives. But who knows, let’s wonder a little now too.
The Supreme Court Nine Doesn’t Actually Mean Nine
Important considerations come into play when considering reform. The most important of such will be the constitutionality of any reform. A measure of constitutionality it should be noted that would be measured by the Supreme Court. The very institution we are discussing reforming. It’s hard to imagine Chief J Roberts and the other conservative justices will willing give away their power by diluting the Supreme Court.
Let’s start with the language of the Constitution noting that nowhere in the Constitution is there a requirement for nine Supreme Court justices. The number currently assembled.
What Article III says is:
“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”
So basically, whatever the Congress dictates the federal judicial structure should be, is. Our current system has lowest Federal District court. This court appeals its cases to an Appellate court. There are 13 appellate courts. Finally at the top is the Supreme Court who has latitude to pick and choose what cases they want to hear, and what policy they are considering changing. The Supreme Court is a group of politicians in robes and treated as such, with term limits and an ethics committee to determine standards of “good Behavior”.
“Article II goes on to talk about the justices behavior, that they “shall hold thir Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
In fact, the Supreme Court has taken many forms. From six justices, all white men, to five under Thomas Jefferson and reached its current form of nine under Andrew Jackson though not without a try with 10 during the Civil War. Since the Judiciary Act of 1869 the number has been set at nine. The last real challenge was FDR’s attempt to stack the court adding six justices under the Judicial Procedures Reform Bill of 1937.
Plans For Reform
The most encyclepediac exploration of Supreme Court reform can be found in a recent law review article published in the Yale Law Journal by Daniel Epps and Ganesh Sitaraman. In their article they present two novel ideas while considering the shortcomings and advantageous of some of the ideas listed below.
Often the approach is to think in terms of the law when the realist interpretation is that the court too is a branch of politics cloaked in the garbs of tradition and myth. This really isn’t the fault of justices. As the law is opaque, justice often can’t avoid pulling from their own values and experiences to answer questions when the law doesn’t provide clear answers. These are the cases the Court must most often deal with. This is why there is so much current backlash. Couple the frustration over McConnell’s delay tactics with the appointment of someone accused of immoral behavior tilting the court ideologically conservative with Justices appointed for life and it’s easy to understand liberal frustration while a generation has been lost.
Elie Mystal summarizes the necessary approach in The Nation writing the goal is not a revenge fantasy but “is an attempt to restore the Supreme Court to legitimacy and fairness.”
Pack the Courts
The usual starting place is to pack the court. That’s because this recourse is not without historical precedent. As there are no constitutional obligations to keep nine Supreme Court justices why wouldn’t the next president merely appoint a new number reconfiguring the ideological balance of the court. No where does the Constitution say there must be nine Supreme Court justices.
The Judiciary Act of 1789 established a six-justice Court and expanded to ten under Lincoln. The most recent historical precedent was during the New Deal years of FDR. In the aftermath of the Great Depression, FDR wanted to create social programs to ease the burden on the unemployed, youth, and elderly. The Supreme Court began to strike down these policies as unconstitutional. FDR responded by proposing to add five new justices under the Judiciary Reorganization Bill of 1937. While the bill failed, the underlying machinations of solidity were shaken.
More importantly, the underlying point is that actions set precedent. Just as Obama was forced to resort to executive orders to pass his policy proposals, President Trump just as easily overturned those policies.
In the same way, if Sanders or Biden become president and appoint two justices or two hundred, the next republican can do the same or its opposite. Noting here that both candidates reject the idea of court packing as a “dangerous tactic.”
This term the Supreme Court will hear cases involving gun control, abortion, LGBTQ rights and immigration. That’s a concern because Chief Justice John Roberts is really conservative, In 42 split-decisions Roberts has presided over involving racial minorities, immigrants, workers, and abortion, he voted for conservative outcomes every time. In other words, whether he’s ruling in the impeachment trial or against immigrants, Justice Roberts is a partisan hack.
The perception of illegitimacy has taken its toll in recent times. The real issue is when the Supreme Court is tested, being made to enforce its ruling. This happens in periods when the court is seen as partisan, not representing the will of the people. The confirmation vote of Justice Kavanaugh and Gorsuch and the processes surrounding them only made appearances worse.
The truth is that our perceptions are invariably colored by biases and this is no different for justices.
This is made even more pernicious when justices have worked their whole honing their beliefs around what public policy is and what their role should be in interpreting it. Though they might advocate an idea of neutral arbiter “calling balls and strikes” as CJ Roberts claimed in his hearings before Congress.
This has a sort of dovetailing effect. On the one hand we can argue that the Court’s responsiveness to political predilections is good and represents the will of the people. On the other hand we have the notion that political responsiveness is rightly reserved to the legislature and executive branches who make law, while the Court acts as neutral arbiter standing as a bulwark against the tyranny of the political moment.
 The term legitimacy, taken by Epps and Sitaraman, is defined as focusing squarely on questions of sociological legitimacy involving “prevailing public attitudes toward governments, institutions, or decisions.”
 Epps, Daniel & Ganesh Sitaraman, How to Save the Supreme Court, https://www.yalelawjournal.org/pdf/EppsSitaramanFeature_srycu3pa.pdf
 Id. “Only three of the current Justices (Justices Thomas, Sotomayor, and Kagan) were nominated by a President who entered office after winning the majority of the national popular vote.”
 Amelia Thomson-DeVeaux & Oliver Roeder, Is The Supreme Court Facing a Legitimacy Crisis?, FIVETHIRTYEIGHT (Oct. 1, 2018, 6:00 AM), https://fivethirtyeight.com/features/is-the -supreme-court-facing-a-legitimacy-crisis [https://perma.cc/R6X4-HCTW]
 See James L. Gibson, Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance, 23 LAW & SOC’Y REV. 469, 480–81 (1989) (finding, based on responses to surveys, “some evidence of the Court’s capacity to engender compliance with unpopular political decisions”)