Court Reform: Alternatives to Court Expansion
With the death of Justice Ruth Bader Ginsburg in mid-September and the confirmation of Justice Amy Coney Barrett to fill her seat, Democrats and liberals have been up in arms about the Supreme Court’s likely shift to the right. With Justice Barrett’s confirmation, conservative justices now hold a dominant 6-3 majority on the most powerful court in the land, which could affect all dimensions of American life, from the workplace to environmental protections to reproductive rights. To mitigate or offset the court’s new conservative majority, many liberals would support the addition of more justices to the Supreme Court, now that Democratic nominee Joe Biden has won the presidency and Democrats have the potential to retake the Senate majority if they win the runoffs in Georgia. While adding more seats to the Supreme Court may seem like a good option for Democrats, Congress has more useful statutory tools that it should use to repair the hard-right Supreme Court.
A court-packing proposal would be detrimental for the legitimacy of the Supreme Court for years to come. Recent polls indicate that Americans broadly oppose court-packing, with a recent YouGov one showing 47% opposed and 34% in favor. Furthermore, it is possible that adding more Justices to the court could reduce the public’s faith in the court, particularly with conservatives. Any time they lost a case at the Supreme Court, conservatives could claim that the newly appointed justices were the reason and that the decision was illegitimate. Senate Republicans have also indicated that they could further pack the court if they were to obtain control of the government, which would further change the Supreme Court’s role from an independent judiciary into a partisan football. Court expansion is simply too blunt of an instrument, and as such is not a good option for reforming the judiciary.
However, a Democratic Congress could also pass legislation detailing “jurisdiction-stripping” wherein Congress would restrain the Supreme Court from hearing or considering certain cases. This power is derived from Article III, Section 2 of the US Constitution, which states that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” While jurisdiction stripping has been considered at various times throughout American history and was endorsed by John Roberts, it has never truly been used. However, if Democrats wanted to protect specific legislation, or whole sections of US law from Supreme Court review, they could simply insert such a clause into their legislation to protect it. Such provisions would likely be challenged in court, and the Supreme Court itself may attempt to strike it down. However, it is less escalatory in nature than court-packing and one that would not fundamentally change the nature of the Supreme Court.
Another proposal that has gained traction is a term-limits bill, like the one introduced by Representative Khanna (D-CA). This bill, if enacted, would indirectly impose eighteen-year term limits on Supreme Court Justices, after which they would earn “senior status,” much like the current situation on US Appellate Courts, where judges who have served for a certain period of time can vacate their seat while still managing a caseload at their discretion. Under Representative Khanna’s proposal, Supreme Court Justices who achieved senior status would vacate their seat and assist on appellate court cases, and would temporarily rejoin the Court in the case of an unexpected Supreme Court vacancy. With nine Justices serving staggered eighteen-year terms, and one term expiring every other year, Khanna’s proposal would allow a new Supreme Court justice to be nominated every two years. Although some have argued that its constitutionality is questionable, many lawyers believe it does comply with the Constitution, as senior status for other federal judges has been in existence for over one hundred years. This proposal would allow every president, once elected, to have a fair impact on the Court, and would change Supreme Court nominations from sudden political battles to consistent, routine additions. Furthermore, the bill would exempt all sitting Justices on the Supreme Court, so no current members would be forced off of the Court.
I would propose that a Democratic Congress enact Representative Khanna’s bill and also strip the Supreme Court of certain important jurisdictions for ten years. Since it could take a decade or more for the Court’s composition to equitably reflect the presidents who had appointed them, in the meantime, it is crucial to protect congressional legislation from the Court’s conservative majority. This is particularly true with issues like climate change, where time truly is of the essence. This plan would help to depoliticize the Court in the short and long term and would allow for a slow and smooth transfer of systems.
Justice Barrett’s confirmation was a bluntly partisan move by the GOP, one that directly contradicts a false precedent the GOP created in 2016 with Judge Merrick Garland. It highlights the inequitable reality that over the last forty years, Republicans have appointed fifteen justices and the Democrats only four, despite both parties having held the Presidency for roughly equivalent periods of time. Court reform is needed, one way or another, to restore independence, fairness, and public confidence in the judicial system. While court expansion may give liberals a short-term sugar high, it would escalate the battle over the Court and further degrade the Court’s impartiality. The goal with court reform should be to restore the Court, not demean it more. Court expansion simply does not meet that standard.
Sam Husemann is a senior in high school and writes political opinion pieces for the Next Generation Politics blog. He enjoys studying any sort of politics and U.S. government from Congress to his local city hall. When he’s not writing, he’s usually reading, thinking, or cooking. You can find him on Instagram as @husemannsam.