Why There Must Be Supreme Court Reform
Supreme Court Reform
The Supreme Court has become overly politicized. Control of the Supreme Court, the capture and control of the judiciary branch has become a motivating factor for the Republican party. Democrats have woken up to this coup as seen in the rancor over Supreme Court nominees that has divided Congress and polarized the legislature.
Fights over the courts has bred toxicity between the political parties and bred enmity, which divides the legislature who fails in their role of governing society.
Supreme Court reform should be motivated by an underlying focus on precedent. This would limit the role of the Court to set policy and reserve this power to the legislature. In essence this can all be viewed as your elementary civic’s lesson about the necessary tension and power struggle between the branches of government.
What Reform Should Achieve
As Daniel Epps and Ganesh Sitaraman argue in the Yale Law journal is that the Founding Fathers did not envision political parties would play such an important role in deciding who would sit on the supreme Court and how this would affect public policy for the entire country.
Today, we have a setting of polarized legal interpretation with one party dominating the ideological makeup of the Court. This is bad. Reform must change the emphasis that politics plays over who is appointed to Supreme Court. This is meant to make the Court at least less partisan than the other branches. This is an idea with rich historical importance.
Reform should also limit the political stakes of nominating justices. The goal of reform is to return the courts to their original intention of determining the constitutionality of laws while showing deference to the political branches to make policy decisions.
This means the Supreme Court would show a loyalty to earlier precedent, only making landmark reversals in extremely rare circumstances. Roe, Obergefell, and even Citizens United wouldn’t be in jeopardy.[1]
With these intentions in mind Daniel Epps and Ganesh Sitaraman set to devise two novel strategies to reform the Supreme Court while doing a comprehensive taxonomy of existing proposals.
Reform Proposals
1. Supreme Court Lottery
Every judge on the federal courts of appeals would also be an Associate Justice of the Supreme Court. All 179 judges who currently sit on those 13 courts of appeal would at the same time become Supreme Court justices. The Supreme Court would continue to hear cases in their usual panel of nine. Those nine justices would be randomly selected from those 179.
To answer the problem of politically biased justices, no more than five Republicans or Democratically appointed justices by a President of that political party at a time.
This proposal would severely dilute the existing power of 9 justices sitting currently on the Supreme Court. Any proposal’s constitutionality would be reviewed by the current Supreme Court who would have final veto power. It’s generally uncontested that Congress has the power to change the size of the Supreme Court and has done this over the centuries.
These justices sit as king/queen philosophers. The prestige of their role in our society would lead them to hold against such a proposal. These justices have the ability to shape constitutional law for a generation. Thus the sitting Supreme Court Justices would not lose their positions or their lifetime appointments, and current CJ Rogers would retain his lifetime position.
2. Balanced Bench
In this proposal the Supreme Court immediately adds a tenth justice. Five would be affiliated with the Democrats and five with the Republicans. This proposal would go a long way to immediately rectifying conflict between the two parties over how President Obama’s nominee was handled.
The ten party affiliated justices would be appointed by the President. The ten justices would then appoint five more by vote with strong majority requirements. These five justices would be chosen for one year terms. Cooperation is incentivized. If the justices fail to establish a full slate of colleagues, the Supreme Court lacks a quorum and cannot hear cases for that year.
The prospect of renewable terms might serve as a powerful incentive for centrism though threat of non-renewal might undermine the justices’ independence.
If the main goal of reforming the court is to make it less politicized. It flummoxes the mind how this proposal achieves that goal except that political justices would be forced to agree on colleagues by a supermajority encouraging justices to work across party lines with the goal of eliminating party lines. It’s difficult to imagine this working in a time when legal interpretation follows party ideology.
At the same time it can be argued that having more justices than the current nine life-tenured would reduce cults of personality (think Notorious RBG, a personal favorite) or emphasis placed on one Justices’ idiosyncratic views as happened with Justice Scalia.
This proposal also fails to circumvent the current conservative majority requiring them to conclude against their own interests and majority power unless they take the long approach. What the Republicans did now the Democrats did before and might do it again. [2]
The Supreme Court might be hard to reform. Today, consensus is fleeting.
[1] I have very strong feelings that Citizens United is a case that should be overturned as misapplied Constitutional Law. However, adhering to stare decisis, a legal term meaning follow what came before and so decisions in earlier cases should determine a legal decision.
[2] From 1933 to 1949 democrats controlled the presidency under FDR and Harry Truman. During this period they nominated thirteen Justices to the Court. That’s outrageous considering how contentious Trump appointment confirmation hearings have played out. Over the last half-century, Democrats have controlled the Presidency for twenty out of fifty years while appointing only four justices while Republicans have appointed fourteen.
