Disorder in the Supreme Court: Four Ways to Resolve the Partisan Chaos

A seat on the US Supreme Court is perhaps the most the powerful position one can attain in modern times. With the stroke of a pen, justices can uphold or strike down policies that have global impacts. The Constitution doesn’t expressly grant the Court this degree of power, but over time we’ve come to accept the Court’s outsized role in shaping policy.

Consequently, the Supreme Court has become an attractive target for political parties as each side breaks norms and takes undemocratic measures to ensure their party is the one deciding the fate of critical pieces of legislation. Unsurprisingly, when the power held by such a position becomes available in the form of an open seat, decidedly undemocratic chaos ensues between political parties competing to win the territory.

A Downward Spiral of Partisanship

In 2013, Senate Democrats changed the rules so that lower federal court judges could be confirmed with a simple majority vote (51 votes out of 100) instead of the normal bipartisan 60-vote requirement. Republicans responded by creating the same rule for Supreme Court justices in 2017. This 51-vote requirement clears the way for more partisan judges as nominees no longer need approval from members of the opposite party.

When justice Antonin Scalia passed away in 2016, Senate Leader Mitch McConnell refused to hold a hearing or vote for President Obama’s nominee, Merrick Garland. Instead, McConnell reasoned that the voters would decide who should replace Scalia in the 2016 election. This resulted in denying an open seat to a president who twice won the popular vote while allowing a president who didn’t win the popular vote to fill the seat with Neil Gorsuch. It’s therefore unsurprising that many Democrats are seriously considering packing the Court with multiple liberal justices should they win the Senate and presidency in 2020. Refusing to hold a vote for an open seat and packing the Court aren’t clearly unconstitutional or unlawful, but both actions severely undermine our traditional democratic and institutional norms.

The structure of the Supreme Court – nine justices with lifetime tenure – concentrates power in very few hands, encouraging a political arms race that fosters partisan rhetoric and devalues moderate, open-minded judges. But it doesn’t have to be this way.

We Don’t Need to Elect Justices or End Judicial Review

For several decades following the adoption of the US Constitution, the Supreme Court was a fledgling enterprise that mainly handled low-profile disputes of federal law. In the 1803 case Marbury v. Madison, Chief Justice John Marshall introduced the concept of using judicial review to invalidate laws that conflict with the US Constitution. That decision certainly gave the Court power and influence, but also increased the Court’s legitimacy. Few scholars and politicians doubt the correctness of this concept since it makes legal and practical sense for a theoretically apolitical body tasked with interpreting federal law to decide if legislative or executive actions are violating the supreme legal document of the country.

The concept of judicial review becomes problematic, though, when the Court isn’t apolitical and is instead staffed with extensions of the political parties. But scrapping the Supreme Court’s ability to review the constitutionality of legislation or requiring justices to be elected instead of appointed, as some commentators would like, may not be necessary or beneficial. It makes practical sense to separate the creation and enforcement of laws from the review and assessment of those laws. It also makes sense to have federal judges and justices appointed rather than elected. Elections would only intensify a judge’s need to pander to political parties, political action committees, and the viewpoints of extreme groups of people.

Instead, we could simply restructure the Supreme Court to make each seat less consequential. This would potentially reduce the influence of political parties on the Court, which may safeguard the justices from political partisanship. Several proposals for restructuring the Court have been floated, but we’ll focus on four that have garnered attention since Brett Kavanaugh was nominated to replace justice Anthony Kennedy earlier this year.

A Quick Overview of the Current Structure of the Supreme Court

The Supreme Court currently has nine members, though the US Constitution doesn’t mention anything about the number of members the Court should have. The parties have simply coalesced around the idea that nine justices is a satisfactory number. When a justice passes away or retires, the president nominates a new justice and the US Senate must approve the nominee in order for the nominee to be seated on the Court. Since there is no law mandating that nine, and only nine, justices serve on the Court, a president could nominate 4 new justices who share his or her political thoughts at any time (no death or retirement needed) if the Senate would approve them. This is referred to as “packing” the Court.

The Supreme Court oversees 12 regional Circuit Courts of Appeals in the interpretation of federal law. The courts of appeals, in turn, hear appeals from lower federal district courts within their circuit. Interpretations of law by each circuit are only applicable in the states of each circuit. While cases in front of the Supreme Court are decided by all nine justices, cases in front of the appellate courts are heard in panels of three judges. Those three judges are randomly assigned to cases. Parties can petition for their case to be heard by all the judges in the circuit, a process known as hearing a case en banc.

The 11 Circuit Courts of Appeals Plus the DC Circuit via Wikipedia

While the appellate courts are mandated to hear appeals from the lower federal courts, justices on the Supreme Court choose the cases they hear. Generally, this means the Court takes cases that groups of justices think are significant or cases that will resolve disputes between the circuit courts of appeals. All federal judges – meaning those on the lower federal courts, courts of appeals, and Supreme Court –  are nominated by the president, approved by the Senate, and serve lifetime appointments.

Ideas 1 and 2: Limit Tenure and Create an 18-Member Court

One idea is to give justices 18-year terms, staggered every two years so that each president is guaranteed two Supreme Court appointments. This proposal has been floating around for some time, but gained attention when the more liberal Yale law professor Akhil Amar and the more conservative Northwestern law professor Steven Calabresi proposed it in an op-ed for the Washington Post in 2002. Current US Department of Energy secretary Rick Perry even officially backed the idea during his 2012 presidential run.

University of Georgia law professor Christian Turner recently proposed a variation of this idea. His proposal would expand the Court to 18 members while limiting tenure to 18 years. The plan would also guarantee presidents two nominees, but would require the Senate to reject nominees instead of approve them. If the Senate rejects three nominees then the president may appoint one of them to the Supreme Court.

Guaranteeing that each president fills two spots on the Court potentially reduces the high stakes of each departure. Currently neither party really knows when a vacancy will arise since openings are dependent on justices either dying or choosing to retire. For instance, President Obama filled two vacancies during his 8-years in office (though three vacancies arose during that time period) while President Trump has already been presented with two vacancies in less than two years (though only one vacancy arose in that time period). This uncertainty creates an urgency around each open seat which leads to politicians and interest groups engaging in highly partisan and undemocratic behavior.

With 18 members each new justice is less likely to tilt the ideological balance of the Court, which makes a nomination even less consequential. Requiring rejection by the Senate, instead of approval, eliminates the Senate’s ability to block an appointment by refusing to hold hearings or votes. Lastly, lifetime tenure reduces the chances that a judge or justice will craft decisions for a future political run or future job prospect. Both proposals attempt to maintain this benefit by allowing departing justices to maintain their salaries and serve on the courts of appeals.

Ideas 3 and 4: Create a Supreme Court with Rotating Members Who Have No Idea What Cases They Will Hear

Law professors Dan Epps and Ganesh Sitaraman suggested dividing the Supreme Court into panels comprised of rotating judges serving on the US Courts of Appeals. Each panel may serve for several weeks, deciding which cases the Court will take and then hearing arguments and writing opinions in other cases. This means that instead of a Supreme Court composed of nine permanent members deciding which cases to take and then the same nine members actually deciding the cases, one panel of judges would decide which cases to hear and another panel would actually decide the outcomes of the cases. All of this would be randomly assigned. This effectively means that highly partisan judges cannot cherry-pick cases they want to influence because they will have no idea who would actually be deciding the outcomes of those cases. And, since the Supreme Court would consist of a rotating group of hundreds of appellate court judges, each nomination isn’t all that important.

Epps and Sitarman also proposed the idea of having a 15-member Supreme Court composed of five justices appointed by Democrats and five justices appointed by Republicans. The additional five justices would then be chosen by the 10 justices appointed by the parties. Theoretically, those 10 members would be forced to choose fairly moderate judges to fill the remaining five seats.

Each Party Will Raise The Stakes Unless We Restructure the Court

It’s clear we need some changes. Each retirement, nomination, and court decision shouldn’t be so stressful for Americans. The process shouldn’t encourage political parties to break norms, undermine democratic principles, and encourage the appointment of extreme, partisan judges. The current process is a debacle and we should demand change.

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