A compromise proposal for Supreme Court reform

Add two seats and empower Chief Justice Roberts to save the Court's legitimacy

Supreme Court reform is back in the national discussion after a series of blockbuster cases erased the constitutional right to abortion, confined the power of local governments to regulate firearms possession, and stripped the federal government of the ability to effectively address climate change. These cases occurred against a backdrop of a Court that over the past decade has gutted campaign finance regulation and federal supervision over voting rights, among other outrages.

The erosion of American democracy has many causes, but the much of the mess we are in falls at the doorstep of this Court - with governments stripped of much of their power to address vital problems; gerrymandered electoral districts that produce mass political polarization; unlimited amounts of unaccountable special interest money poisoning our elections and states able to restrict the franchise with virtually no judicial or federal oversight. And as I noted in an earlier post, a North Carolina redistricting case on the docket for next terms signals that the Court’s hyper-charged activist majority is poised undermine even more bulwarks of American democracy in coming years.

While many ideas have been bandied to reform the Court, the most concrete and popular proposal has been for Congress to add four seats to the Supreme Court, which, if done quickly enough, would allow Biden to create a new a 7-6 majority of justices appointed by Democrats.

In evaluating this and other proposals, I have tried to put myself in the shoes of conservatives, let’s say during the Warren Court era, who were vehemently opposed to that Court’s work product: the expansion of procedural rights for criminal suspects, the one-person/one vote doctrine and dramatic efforts to provide greater racial and gender equality in education and employment. Had Warren Court critics proposed giving, let’s say Richard Nixon, four additional Supreme Court appointments to “re-balance” the Court, I surely would have opposed this effort on principled grounds relating to judicial independence and preventing politicization of the judiciary. Indeed, conservative efforts to strip the Supreme Court of jurisdiction to consider controversial cases relating to busing and school prayer failed in the 60s and 70s.

There is also a complex historical record of Court expansion, court-contraction, and congressional rejection of FDR’s large-scale Court packing plan to consider, all of which are well-detailed in the report of President Biden’s recent Commission on the United State Supreme Court. In sum, Court expansion has been used to achieve substantive political goals multiple times in American history. However, the most recent and dramatic proposed expansion — FDR’s court-packing plan in 1937 — was ultimately rejected by Congress and was criticized across party lines. However, the bravado of FDR’s action may have prompted a shift in Supreme Court doctrine that enabled New Deal social and economic legislation to move forward, the so-called “switch in time, that saved Nine.”

To my mind, to carry the day, on this issue advocates of reform have to make the case that the current circumstances are not simply about the preference for certain constitutional issues to be decided differently, but rather that there are vital, even existential, issues at stake for the future of the country. Another possible line of argument is that unfair or flawed procedures have resulted in the current Court’s composition that undermine its legitimacy. Without proving these points, court expansion would just become another tool used for partisan advantage, ultimately damaging the vital role our judiciary plays enforcing the rule of law.

That said, one of the earliest and strongest advocates that I know of for this proposal is my former constitutional law professor, Laurence Tribe. The fact that the scholarly institutionalist Tribe is such a vociferous advocate for Supreme Court expansion speaks to the magnitude of the crisis the current Court majority poses for our constitutional democracy.

Tribe makes a compelling argument that the Court is contributing to an existential threat to our democracy by failing to regulate gerrymandering, by striking down bipartisan efforts to get dark money out of our elections, invalidating critical portions of the Voting Rights Act, and demonstrating a recklessness with legal stability by overturning longstanding precedents. It is these actions — all of which have advantaged one political party — as well as irregularities in the appointment and confirmation process that have raised the stench of partisanship over the Court and is undermining its legitimacy with the American public. Indeed, a recent Gallup poll (that was in the field while Roe was overturned) shows respect for the Supreme Court plummeting from 40% to 25% in just two years, with support for the Court now polling at its the lowest level since Gallup started surveying this issue in 1973.

Another argument for reform is that the allocation of Supreme Court appointments has disproportionately favored Republicans in the modern era.

The data is striking.

If we project forward to the end of Biden’s term in January, 2025, Republicans and Democrats will have each held the presidency for exactly 40 of the past 80 years since FDR’s 4th term began in January, 1945. Yet, Republicans have appointed 21 justices and Democrats only 13 during this time (assuming Biden has no more appointments). If we consider just the post-Watergate era (when Jimmy Carter took office in January, 1977), each party has held the presidency for 24 years, but Republicans have had 11 appointments to only 5 for Democrats. And in the last 24 years, the presidency has also been split 50/50, but Republicans have had 2 more Supreme Court appointees than Democrats. Add to this, the blatant, norm-shattering partisanship of Republicans denying Obama’s appointee — Merrick Garland — a vote on confirmation and it is clear that Democrats have been systematically disadvantaged in the number of justices they have been able to place on the Court. (Oh, by the way, if you think I am cherry picking years to avoid the FDR appointments, we can go back to January 1921 when Warren Harding was inaugurated. Again, Democrats and Republicans have each held the presidency since then for 54 years, yet Republicans have appointed 29 justices to the Democrats’ 22.)

So we are left with a quandary: on the one hand, we have a Court that is dramatically out of sync with the American public (with a 6-3 Republican advantage despite Democrats having won the popular vote in 7 of the last 8 elections) and issuing decisions that have damaged our democracy, but on the other, the remedy of Court expansion has been disfavored historically, will be seen as a blatantly partisan action, and may inflict more damage on the legitimacy of the judiciary - an institution critical to our constitutional foundation.

While it is a tough call, I don’t believe that doing nothing is a defensible position. The current Court is too radical, too dangerous, and too unaccountable. I think there are two solutions that are justified and defensible under the current circumstances - either add two seats (not four as Tribe proposes) to the Court immediately or statutorily impose 18 year term limits to take effect in 2025 after the next presidential election. A third option is to merge these two proposals (which would lead to 22-year term limits).

Here is my logic for each idea:

First, adding two seats to the Court would leave a 6-5 majority for the Republicans with Chief Justice Roberts as the swing vote. Taking this step would essentially reverse the “stealing” of the Garland seat - because if Garland had been seated, there would now be a 5-4 Republican majority with, again, Roberts as the swing vote.

This step would not satisfy progressives as the Roberts Court has caused many of the problems described above. But adding the two seats would temper the damage that is being done by the current 6-3 majority - best described as the Thomas Court - which overruled Roe v. Wade and is a clear and present danger to our constitutional order.

As for conservatives, yes, they will be outraged by what they will describe as
”court packing” but will have a difficult time explaining why adding these seats and leaving a conservative majority in the Court is not a proportional response to the Garland fiasco.

I also believe it is possible - though many will disagree - that Chief Justice Roberts would see Congress’ action as both a rebuke of the Roberts Court’s handiwork and an assignment to him personally, by the U.S. Congress, to be the guardian of the institutional integrity of the Court. Hopefully, the message Congress would be sending to the Chief Justice through this action would positively impact how he casts his swing vote and exercises his power to control the direction of the Court (a power he clearly lost with the appointment of Justice Amy Comey Barrett).

Second, term limits would address the current crisis more slowly, but is a long overdue reform that would undo the arbitrary and unfair allocation of Supreme Court nominations between presidents. A properly constructed 18-year term limit system would result in two Supreme Court nominations every four-year presidential term, and therefore ensure that the distribution of nomination opportunities would be more in synch with popular opinion than has occurred in recent decades. Knowing when vacancies would occur, presidents could make nominations prior to a justice’s tenure expiring to ensure a smooth transition and ensuring the Court is never short-handed (like the pattern used for the confirmation and swearing in of Justice Brown Jackson this year).

The system would not violate the guarantee of life-tenure to federal judicial nominees, because Congress would provide that a retired Supreme Court justice could opt to continue working as a senior judge on a federal court of appeals. If a justice retires before the term-limit, the president could fill the vacancy but only to fulfill the remaining years left on the departing justice’s term so as not to upset the 2 nominations per presidential term norm.

Again, both progressives and conservatives would find reason to complain about this reform.

Progressives would have to live with the Thomas Court for at least another 3 years and that Court would be retrenched if Republicans win the next presidential election. The unfairness of the Garland “steal” and unequal appointments over the past decades would go unaddressed.

Conservatives would feel disadvantaged by term limits because the first three justices forced to step down from the Court would be Republican appointees (Thomas, then Roberts, then Alito). While this is correct, the issue of who fills these slots will be clearly put to the voters in the 2024 presidential election. Both parties will have the opportunity to make the composition of the Court a campaign issue and then the victor in the race will have the opportunity to make good on a campaign promise.

This is a far superior system to the current arrangement, in which presidents try to run on the issue of the Court, but it is unclear if and when their preferred candidate will get to fill spots on the Court. It also eliminates the potential for corruption, where presidents attempt to cajole a justice to retire, and perhaps take actions or make promises that impact the timing of a retirement. And we avoid justices hanging on well into their 80’s as too many have done in recent years.

Of course, to implement these reforms, the Democratic Congress would have to pass legislation and change the filibuster rule. Unfortunately, even after the overturning of Roe, this seems unlikely.

Here is how the transition to a term-limit system would work:

January 2025: President is inaugurated (or re-inaugurated)

July 2025 - Justice Thomas is replaced (Service: 33 years, 8 months)

July 2027 - Chief Justice Roberts is replaced (Service: 21 years, 9 months)

January 2029: President is inaugurated (or re-inaugurated)

July 2029 - Justice Alito is replaced (Service: 23 years, 5 months)

July 2031 - Justice Sotomayor is replaced (Service: 21 years, 10 months)

January 2033: President is inaugurated (or re-inaugurated)

July 2033 - Justice Kagan is replaced (Service: 22 years, 10 month)

July 2035 - Justice Gorsuch is replaced (Service: 18 years, 2 months)

January 2037: President is inaugurated (or re-inaugurated)

July 2037 - Justice Kavanaugh is replaced (Service: 18 years, 8 months)

July 2039 - Justice Barrett is replaced (Service: 18 years, 8 months)

January 2041: President is inaugurated (or re-inaugurated)

July 2041: Justice Brown Jackson is replaced (Service: 19 years)

July 2043: Justice appointed July, 2025 is replaced (Service: 18 years)

(Remarkable how even-handed this system turns out with Roberts, Alito, Kagan and Sotomayor all serving approximately 22 years and Gorsuch, Kavanaugh, Barrett and Brown Jackson all serving about 18 years).