The Supreme Court Needs Reform…or Congress Could Just Do Its Job

Democrats want to change the court, Republicans want the status quo. Most Americans would be satisfied if Congress did its job to counter the court with effective laws that pass constitutional muster.

Institutions, especially those steeped in history and tradition, often need and deserve change.

That has been true of the country’s three branches of federal government since the first days of the Constitution. Over the years, the House of Representatives capped its membership at 435, the Senate moved to direct election and presidents have been limited to two terms. And those are just some of the most obvious changes.

Today, it is the Supreme Court most often in the spotlight. The push for change divides sharply along party lines. Democrats tend to want a new look for the highest court, Republicans are shocked that so sacrosanct an institution could be changed.

Republicans can dispense with the histrionics. Since the court first met in 1790, it is Republicans who often have succeeded in bringing the biggest changes to the court. Abraham Lincoln expanded court membership to safeguard his Civil War era policies from court intervention; after Lincoln’s assassination, Republicans in Congress led the charge to return to the nine-member court to thwart Andrew Johnson’s more lenient views on Reconstruction.

More recently, Republicans in 2016 reduced membership on the Supreme Court from nine justices to eight. Sen. Mitch McConnell, the Republican leader in the Senate, used blatant partisanship to keep open the vacancy created by the death of Justice Antonin Scalia. The Court’s membership stood at eight for more than a year.

Three years later, in another callous exercise of political strength, McConnell did a 180-degree flip after the death of Justice Ruth Bader Ginsburg. Amy Coney Barrett was appointed and confirmed in little more than five weeks.

Today, the Democratic reform centers on legislation introduced in July by Sen. Sheldon Whitehouse (D-RI). Whitehouse and his co-sponsors, all Democrats, are proposing that a new justice would take the bench every two years and spend 18 years participating in all Supreme Court cases. The nine justices appointed through this process would hear all cases brought under the Supreme Court’s appellate jurisdiction. These are the cases that come to the court from a lower court and typically are the most consequential and controversial. The cases on the constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization, and campaign spending limits, Citizens United v. FEC, are two examples.

After 18 years of service, justices would move to what amounts to senior status. They would participate only in the constitutionally-required “original jurisdiction” cases. These cases, relatively few, are those that come directly to the Supreme Court and often involve disputes between the states or between a state and the federal government.

Whitehouse’s bill requires presidents to nominate a person to the Supreme Court within 120 days of the beginning of the first and third years of their four-year terms. The Senate retains the power of advice and consent. However, if the Senate does a “McConnell” and refuses to act, the nominee automatically is confirmed.

The court appointed as Whitehouse proposes has its merits, not least of which is that it is more likely to reflect the partisan mood of the country. If in place today, the Supreme Court likely would have a 5-4 liberal-conservative split at the end of Trump’s second term (five justices appointed by Presidents Obama and Biden, four by Trump). The party that wins the White House in 2028 would determine the court’s majority over the next four years, reflecting the mood of a country that just elected a president.

The proposal also would diminish the adverse consequences of the longevity of justices. The age of a nominee is an increasingly important criterion in evaluating potential nominees. The last three justices, Neil Gorsuch, Brett Kavanaugh and Coney Barrett, averaged about 50 years old when they were appointed. Even the most well-qualified candidate isn’t likely to make the cut if he or she is 55 or older.

The argument for lifetime appointments goes back to the country’s founding. Alexander Hamilton and others argued a lifetime term was the only assurance of independence from political pressure. If justices had to face reappointment, Hamilton feared there would be a “danger of an improper complaisance” to the president.

Fair point. But when Hamilton wrote his warning, many men didn’t live to celebrate their 70th birthday. Today, with longer lifespans, justices serve for decades. The ever-younger nominees means that the time between court vacancies, now about three years and growing, will assure that many presidential terms expire without a new face on the court.

In spite of the GOP tradition of reforming the court both overtly and underhanded, as McConnell did, the bill is fiercely opposed by most Republicans. Mainly the opposition is partisan, but there are constitutional questions. Although members who serve out their 18 years remain on the court, their involvement would be limited, calling into question whether the Constitution actually dictates a lifetime appointment and, if so, would Whitehouse’s workaround satisfy the provision.

The bill is worthy of debate, even if it has no chance in the foreseeable future. The bill isn’t likely to garner the Senate votes needed to pass and if it did there is no chance President Trump, in the last two years of his last term, would sign the legislation.

In many ways, the legislation is a reflection of Congress’s own shortcomings, not just those of the Supreme Court. Congress could simply do what it should be doing all along - excercising its own constitutional authority. If Congress acted as a co-equal branch of government it could tackle some of the issues that are causes for concern by court-watchers. For example, Congress could and should impose a strict ethics code on members of the Supreme Court. Objecting to a code of ethics is much harder politically than opposing complicated and comprehensive reform.

More than that, if members of Congress don’t like how courts interpret laws or the Constitution, they could follow the advice of one court observer: “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

The call to arms came from no less an expert than the late Justice Scalia.