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The Pros and Cons of Institutional Changes Being Floated for the Supreme Court

Focus on a row of USA Constitution mentioning the President
By Joseph Fawbush, Esq. on September 24, 2020 4:08 PM

The fight over the next Supreme Court justice appears to be nearly over. Barring unexpected developments, nothing will derail the quick nomination and appointment of a third Supreme Court justice during President Trump's first term. Looking past the next few months, there has already been talk about what approaches the Democratic Party might take after the election should it win control of both Congress and the White House.

What are those options? How could it be done? Do the proposed changes have benefits that outweigh the negatives? Below are the proposals being discussed, along with the pros and cons of each option.

Court Packing

The most talked about option currently is court packing, an informal term for adding to the number of justices serving on the Supreme Court. Despite a long tradition of a nine-member bench, the Constitution does not explicitly say the court should have nine members. Congress can, and has, changed the number of justices in the past, although not since 1869.

The last attempt to add judges came, as you may already know, from FDR. President Roosevelt was frustrated with the Supreme Court striking down his New Deal legislation. It failed, not even making it to a Congressional vote. However, the justices did relent somewhat by halting its practice of overturning every New Deal law, in what is now known as “the switch in time that saved nine."

Despite long tradition, the barriers to add more justices are political, not legal. Congress and the President have the right to pass a law changing the makeup of the Supreme Court. And with long-held political traditions continuing to fall by the wayside, it appears that the most likely change to the Supreme Court would be to simply add more Justices.

It is not without its dangers, however. Breaking the long tradition of a nine-member court may lead to more partisan bickering, with the Supreme Court changing every time one party gains control of the federal government (see, e.g., the Senate filibuster). Many have argued against this path. 

Term Limits

Adding Justices is not the only option. Some have also argued for term limits for Justices to prevent the Court from being locked into one ideology for decades. The most common term limit proposed is 18 years. This would give every U.S. President two nominees for each term and could make the judicial branch more democratic by giving newly elected Presidents an equal chance to put Justices on the Supreme Court.

Others argue that term limits would lessen the legitimacy of the court by making the court more, not less, political, since each Justice would be closely associated with a specific President's administration.

Another obstacle is legal. While the Constitution is silent on the number of Supreme Court Justices, the Constitution does say that federal judges should have tenure so long as they exhibit “good Behaviour." Passing a Constitutional amendment would be a Herculean task. One possible workaround would be to simply reassign Supreme Court Justices to another federal bench at the end of their term, thus technically preserving the constitutional mandate. However, this method could face legal challenges.

Other Creative Options

Another creative theory is “jurisdiction stripping." Under this proposal, Congress would strip jurisdiction for the Supreme Court to hear cases on certain topics, such as abortion, to prevent the court from reversing current law or precedent. However, this would almost certainly lead to more, not less, polarization. For example, if a Democratic-controlled Congress prohibited the Supreme Court from hearing cases on abortion, a Republican-led Congress could then restrict abortion when in power and prevent the courts from overturning it.

There is also the political solution of reforming Senate rules. For example, by re-instituting the filibuster. However, such reforms, even if the Senate could reach an agreement, have no guarantee of lasting past the next election cycle. Further, Merrick Garland, a moderate judge who in decades past could have overcome the filibuster, was not given a hearing in 2016, indicating the extent to which politicization of the court has taken hold. It seems unlikely the Senate could suddenly find compromise now.

The Supreme Court Lottery

First proposed by law professors Daniel Epps and Ganesh Sitaraman, the Supreme Court Lottery proposal would make every federal appellate judge also a Supreme Court Associate Justice. Cases would then be heard by a random panel of nine judges taken from that large pool. It is similar to how federal circuit courts hear cases, with randomly assigned three-member panels issuing opinions.

Under this proposal, judges currently serving a random two-week turn on the Supreme Court would grant cert to cases which would then be heard by a different set of judges. After hearing oral argument for their own randomly assigned cases the judges would write the opinions from their home chambers. This would prevent the Supreme Court from advancing a particular ideological line of cases. 

The negatives? It's a dramatic change which could face institutional resistance. It could also lead to more focus on lower courts, although each individual battle would have less consequence than current Supreme Court confirmation hearings.

Court Packing With a Twist

Another option proposed by Professors Epps and Sitaraman, which has been endorsed by former presidential candidate Pete Buttigieg, would increase the Supreme Court to 15 members. The catch, however, is that Republicans and Democrats would appoint five Justices each, with the remaining five nominated by the Supreme Court itself - unanimously.

This could, in theory, restore the Supreme Court to a less political institution, and remove party affiliation from at least one-third of the bench.

This approach has significant benefits, but drawbacks include getting agreement from Justices on new appointees, and would not necessarily eliminate all current problems such as strategic retirements.

Is Change Needed?

The Supreme Court has long been the most respected branch of federal government, but that trust and respect has been slowly and steadily eroding. It takes a crisis to enact the kind of change being contemplated now. Does Justice Ginsburg's death amount to enough of a crisis to get changes through? Can the Supreme Court be pulled back from the hyper-partisan institution it is becoming?

We live in interesting times.

Related Resources

A Look Ahead at the Eight-Member Court's Fall Oral Argument Schedule (FindLaw's U.S. Supreme Court)

Justice Ruth Bader Ginsburg's Most Important Opinions (FindLaw's U.S. Supreme Court)

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