In the law review article How to Save the Supreme Court, published in the Yale Law Journal, Daniel Epps and Ganesh Sitaraman write persuasively on reasons why it is necessary to reform the Supreme Court and offer two new reform plans.
They argue the Supreme Court has become too partisan with justices adhering to judicial interpretation that tracks along party line. Epps and Sitaraman hope to divorce the Court from this current trend, make the Court less partisan and less of a partisan issue.
You can read more about Epps and Sitaraman’s reform ideas: The Supreme Court Lottery and The Balanced Bench…Here
In this essay I will review the five most popular existing proposals Epps and Sitaraman tackle in their article.
- Term Limits
- Jurisdiction Stripping
- Senate Based Reform
All these reform options suffer some intractable issue and Epps and Sitaraman ultimately conclude the proposals are inadequate. This allows them to then present their solutions. I will explore their conclusions by reviewing the plans in detail exploring the political plausibility and constitutionality of the proposals.
This is perhaps the most popular reform proposal. The best known variation would set eighteen-year term limits for Justices. This would be in line with term limits required for the other branches of government.
Under the proposal, famously associated with Roger Cramton and Paul Carrington, “every President would make two appointments to the Court during each four year term.” This proposal is meant to depoliticize the process of nominating justices and make the process more routine, deemphasizing the importance of any single appointment.
Today, of chief importance is the health of Ruth Bader Ginsburg, now 86. If Donald Trump wins reelection she will almost certainly be replaced by a conservative president tilting the court decisively, a 6–3 majority in favor of the conservative justices.
While Epps and Sitaraman argue the plan would not effectively depoliticize the Court, I’m not sure I agree. While they argue the nomination of justices during every presidential term would actually politicize the Court. I tend to think the regularity and frequency would tend to deemphasize the hysteria that currently surrounds the confirmation proceedings of Justices.
The real road block is the constitutionality of the proposal. Some constitutional scholars interpret the clause in Article III giving Justices a term that lasts during “good behavior” is in fact a lifetime appointment. This interpretation seems dubious and in fact we routinely set retirement ages for justices at all levels.
Cramton and Carrington, however, offer a version of the plan implemented by statute. The current justices would be unaffected making it more likely they would find such any challenges case constitutional reasoning along lines of long term policy rather than short term self-interest. Their proposal would not actual even mandate true term-limits but instead offers a compromise where Justices serving longer than eighteen years would “not lose their commissions, but would instead effectively serve in a senior-status role, sitting only when one of the nine most junior Justices was unable to participate.”
An interesting criticism that Epps and Sitaraman put forward is that the Justices would actually become even more political by using the Court as a jumping point for later political careers. However, this is easily resolved by making those offices unavailable to former Supreme Court Justices. We don’t allow all kinds of people to run for president: illegal aliens, felons, etc. Add Supreme Court Justices to the list.
Panels would require expanding the size of the Supreme Court to the size of court of appeals and cases would be heard in panels of rotating justices with the potential of hearing an en banc review, with all the justices present.
This proposal resolves the problem of the Court hearing too few cases while at the same depoliticizing decisions by rotating justices varying their ideologies. At the same time Epps and Sitaraman make a fair criticism that Court appointments would remain a contentious issue with an expanded court hearing a larger docket and thus having more opportunities for ideologically motivated activism.
Court packing has historical relevance because it has actually happened on a number of occasions. While the Supreme Court is currently comprised of nine justices. This hasn’t always been the case. The first Supreme Court varied between five and six before settling on six. Thus, this strategy would likely be viewed as constitutional and implementable by statute as the size of the Supreme Court is not specified in the consitution. The Court was later expanded to nine justices and has been that way since 1870.
In the 1930 FDR sought to push through his New Deal policy by appointing new, more favorable justices to the bench of the Supreme Court. His proposal called for adding up to six new justices but was rebuked with bi-partisan support.
This proposal would also have a cathartic effect for democrats reacting to Republicans’ recent violations of norms.
Immediately, court packing proposals seem like plans that would lead to greater politicization of the Court. What one administration does sets precedent and would provide the opportunity for later administrations to respond.
Epps and Sitaraman explore a little game theory in their analysis concluding optimistically that “we can imagine conditions under which court-packing could lead to a stable equilibrium, without an ever-escalating cycle of political retaliation.” This situation only seems like a potential equilibrium as it seems the Democrats will never be able to wrestle control from Republicans.
Another problem with this proposal is that it is politically risking. When FDR failed in his plan to pack the court, this basically destroyed his ability to pass progressive legislation thereafter.
This proposal seeks too explicit define cases that are decided on political issues and bar the judiciary from considering cases on those topics. Deciding when cases turn on political issues is however an inherently opaque determination generally reserved for justices as a cop out when they can reach suitable conclusion.
One chief criticism is that it would fail to achieve a stable equilibrium shifting from one pendulum to the next as the dominant party in Congress shifts. This would effectively strip the court of formal power and any public legitimacy as a separate and powerful branch of government.
A final devastating blow is that jurisdiction stripping is probably not constitutional and courts would ultimately decide whether their jurisdiction had permissibly been stripped.
Senate Based Reform
The most common and probably necessary proposal is to restore the filibuster for Supreme Court nominees and require a super majority to confirm a justice.
Currently, confirming a justice requires only 51 votes. Requiring a super majority like a sixty-vote threshold would encourage bipartisan consensus with more votes requiring legislators cross party lines.
Democrats have actually publicly contemplated doing this if they are restored to power. A hilariously titled article then appeared in the Huffington Post Democrats Contemplate How to Forfeit Their Power upon Regaining the Senate.
While unfortunately the rule changes make sense. Any party imposing the changes would effectively strip themselves of existing power.
One absolutely vital rule change would be that any nominee would at the minimum be entitled to consideration. CONSIDERATION MITCH. I am still fucking livid about what happened to Judge Garland. Requiring consideration would put pressure on the dissenting party to ya know, actually do their job.
All of the proposals provide political hurdles that have, at least thus far, prevented them from being implemented. Two of those proposals seem more attractive being both politically plausible and constitutionally viable. Those being Term Limits and Senate Based Reform. While I don’t think strict term limits would be the way to go. The freedom to serve at their pleasure gives justices the power to be dissident.
A retirement proposal like the Rule of 80, which allows justices to retire when they have reached the combined number of 80.
Age + Years of Serivce ≥ 80 than justices have the option of retiring.
Justices would be relieved of some of the pressures of deciding when to retire retire while they would reserve the right hear cases on issues of their choosing.
At the same time it’s vital in order to retain the legitimacy of the Supreme Court to depoliticize the Court. One way of doing this is by requiring bi-partisan support of confirmed justices through the requirement of a super majority.
While I find the above reform proposals interesting, Epps and Sitaraman disagree as they invariably most in order to set up their own proposals. As mentioned I’ve explored those proposals in another article available Here.