Reining In the Imperial Supreme Court

The Imperial Supreme Court, by the author. Image of the Supreme Court building from Wikipedia Commons under the CC-by-2 license.

Welcome Back to Win-Win Democracy

The Supreme Court is an instrument of minority rule, made more consequential by its growing power over our democracy. Given Senate Republicans’ recent Supreme Court confirmation shenanigans, which they used to create today’s reactionary Court, it is tempting to think that this is a recent problem.

It is not: As we discussed last time, the Supreme Court has favored the powerful, the wealthy, and the well-connected for our country’s entire history, with the possible exception of the Warren Court (1953-1969).

During that time, the Court struck down segregation laws, poll taxes, unequal-sized legislative and congressional districts, applied the right to counsel and the exclusionary rule¹ to state and local governments, and interpreted the Bill of Rights to include what is now known as the Miranda rule².

Liberals view the Warren Court positively and conservatives view it as an unfortunate aberration of “judicial activism.” In his 2014 book The Case Against the Supreme Court (Penguin Books), Professor Erwin Chemerinsky³ observes that while conservatives react negatively to the idea of a liberal Court, today they agree with all of these important Warren Court decisions⁴. He further observes that while liberals fondly view the Warren Court as the only progressive Court in our history, the Warren Court could have and should have done much more to drive real-life implementation of its rulings.

In effect, Chemerinsky argues that the Warren Court notwithstanding, the Supreme Court has failed in its core mission and we must change it (p. 331):

“No institution in society is more important than the Supreme Court in ensuring liberty and justice for all. It is an institution, though, that has failed too often in these tasks. It is time to get past the facade of the marble columns and the mystique of justices who appear in robes from beyond heavy curtains, and focus on how to change the Court and its processes to make it more likely to live up to its crucial constitutional responsibilities. Freedom and equality—the Constitution’s greatest aspirations—will be threatened in the future, likely in ways that we cannot now imagine. We will need a Court, perhaps even desperately so, that does better than it has in the past.”

Let’s dive into discussing potential ways to “change the Court and its processes.”

Presidential Commission on SCOTUS

Conservatives and liberals both have their beefs with the Supreme Court. In April 2021, President Biden created a bi-partisan commission “to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The commission’s report, issued in December 2021, runs 294 pages. It provides a thorough and balanced view of the issues facing the Court and discusses the potential reforms that are under active discussion in the country’s legal and political spheres.

The report disappoints in two important ways:

1. Despite recognizing (p. 21) “that the processes by which individuals are

   nominated to the Court by the President and considered by the Senate are central to today’s debate”, the Commission did not analyze the confirmation process for Supreme Court justices.

2. It is pure analysis, sans recommendations. The good news is that Commission members, despite their opposing perspectives and political leanings, were able to vote unanimously to issue the report.

The report is written clearly and without too much legal jargon. I recommend reading it if you want more detail than I can provide here.

Enough background. Let’s talk about potential reforms. I will use the Commission’s report as a source throughout without detailed citation, but will cite other sources as I use them.

Curbing Judicial Power

The Court’s tremendous power today comes from its claim of judicial review — the ability to decide the constitutionality of laws passed by Congress and actions taken by the executive branch — and its claim of judicial supremacy — the idea that the Court’s decisions affect not only the outcome of a particular case but also control future actions by the executive branch, Congress, and the states. In other words, the Court claims to be the final word on all issues of constitutionality.

The Court claimed the power of judicial review in the 1803 Marbury v. Madison case. Its claim of judicial supremacy arose much more recently, in its 1958 ruling in Cooper v. Aaron, which required the State of Arkansas and the Little Rock School Board to obey the Court’s Brown v. Board of Education decision on school desegregation.

Eliminating Judicial Review and Supremacy

As we discussed last time, some legal scholars advocate eliminating judicial review and supremacy because it has been employed mostly to protect the wealthy and the powerful from Congress’ attempts to protect labor, voting rights, civil rights, health care, and the integrity of our campaign finance system.

The call to eliminate judicial review and supremacy resonates with me, especially given the history of what the Court has done with it.

But Professor Chemerinsky argues in his book (Chapter 8) that judicial review is the last recourse of the oppressed and we should not eliminate it. He also observes that in the harrowing times of the downfall of President Nixon, the Court stood up to him demonstrating that no person is above the law.

On balance, I believe that before giving serious consideration to eliminating judicial review and supremacy, we should first try other ways to reform the Court and, then, if those approaches fail, consider seriously reducing or eliminating judicial review and supremacy.

Jurisdiction Stripping

The powers of judicial review and supremacy do not appear explicitly in the Constitution. Moreover, Article III of the Constitution 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.”

Under this exceptions clause, Congress can restrict the Court’s jurisdiction and has, indeed, done so in extremely limited ways. But almost all jurisdiction stripping bills have failed in Congress.

Jurisdiction stripping could be used by liberals and conservatives alike to limit the power of the Court to overturn particular laws. For example, a Democratic-controlled Congress could pass new campaign finance laws and remove them from the Court’s jurisdiction. But then a later Republican-controlled Congress could restore the Court’s jurisdiction over campaign finance.

Jurisdiction stripping used to try to resolve major issues could lead to great instability in our laws. Indeed the legal principle of stare decisis (meaning “to stand by things decided”), which has long guided the Court, is intended to provide stability⁵.

In my view, either we trust the Supreme Court to be the ultimate arbiter or not. Rather than use jurisdiction stripping extensively, we should reform the Court so that we trust it.

Supermajority for Overturning a Law

The Constitution doesn’t require that the Supreme Court decide cases by majority vote. Requiring some sort of super-majority vote to overturn a law passed by Congress would shift the balance of power more toward the legislative branch, which would give more weight to the representatives of the people and less to the appointed Justices.

Many of the Court’s most consequential decisions in recent decades would have been decided differently if there had been some sort of supermajority requirement. For example, neither the 5-4 decision that threw out the pre-clearance section of the Voting Rights Act (liked by conservatives and disliked by liberals) nor the 5-4 decision that threw out parts of the Defense of Marriage Act (liked by liberals and disliked by conservatives) would have happened.

Congress' authority to impose a supermajority voting requirement on the Court, either broadly or only for specific kinds of cases, is unclear. The Commission concludes (p. 181) that “it seems quite plausible that the Court would find a congressional attempt to impose a supermajority rule on the Court’s decisionmaking, or courts generally, to be beyond Congress’ power.”⁶

Setting aside the question of whether imposing a supermajority requirement would require a Constitutional Amendment, is it a good idea?

Professor Jed Shugerman has argued that a supermajority voting requirement would be consistent with the Court’s historical reluctance to override Congress: In its first 200 years, the Court struck down laws by a one-vote majority only 24 times, but that frequency has increased dramatically since the 1980’s.

If one accepts that Congress represents the people, with the President’s veto a check on Congressional power, then the Court ought to defer to Congress unless there is a clear reason not to. Supermajority voting would raise the threshold for overturning Congress’ actions, which many would argue would be good.

Of course, there are a range of possibilities: Requiring unanimity would be different than requiring, say, a two-thirds majority. Unanimity might cause paralysis whereas two-thirds might cause judicial restraint.

Court Packing

OK, I admit it: I chose a provocative title for this section. A more neutral title might be “Increasing the Size of the Court”.

History

There is a history of Congress contracting and expanding the size of the Court. Although there were what the Commission calls (p. 68) institutional purposes for expansion— such as responding to the nation’s growth — each expansion also furthered the aims of a political party, ranging from ensuring that a majority of justices would be favorable to slavery, to determining whether a particular president would or would not have opportunity to nominate a justice, to “reforming” the Court after its calamitous Dred Scott v. Sanford⁷ decision.

The Court’s size has stood at nine justices since 1869.

The most prominent attempt to “reform” the Court for political reasons was FDR’s failed 1937 “court-packing plan”, in which he proposed that he be authorized to appoint an additional justice for each justice over seventy years old, to a maximum of fifteen justices. Although FDR initially couched this as a way to improve the Court’s efficiency, he soon acknowledged it as a way to stop the Court from overruling important aspects of the New Deal. FDR’s Justice Department suggested that enlarging the Court was the only reform mechanism that was clearly constitutional and could be done quickly.

Soon after FDR’s court-packing proposal, the Court started to rule in favor of some New Deal laws for state and federal regulation of the economy. With this change in the Court’s tune, and after much debate in Congress and the country, as well as the sudden death of the Senate Majority Leader, who was a strong advocate for the proposal, support for the move dwindled and it was defeated in July 1937.

Why Expand the Court’s Size?

In Response to Nominations Shenanigans

Calls for Democrats to expand the Court intensified in 2019 and 2020, with hundreds of articles appearing in major media on the topic. These calls, of course, were driven by the hardball tactics that Republicans used to deprive President Obama of his nomination of Merrick Garland based on proximity to an election, soon followed by ignoring the same rationale when they confirmed Justice Barrett in record time, putting in place a 6-3 conservative supermajority.

To Protect Democracy

The current Court has been whittling away longstanding fundamental civil rights. Some believe that failing to use court packing to change the Court’s composition now could lead to irrecoverable erosion of the fundamental rights of democracy, from which the country might never be able to recover as anti-democratic forces become entrenched. By this argument, the risks of the status quo dwarf the risks of expansion.

At very least, without expanding the Court, the Court’s current bias towards degrading democracy will be in place for decades based on the likely tenures of the recently-appointed reactionary justices.

To Increase Diversity

The current Court’s educational, religious, and experiential diversity is underwhelming. Two thirds of the justices are Catholic. All but Justice Barrett hail from Yale or Harvard Law School. All but Justices Thomas and Barrett attended college at Princeton, Yale, or Harvard. There’s nothing wrong with these schools, but do we really want so many of our justices to have such similar, rarefied educational experiences? Expanding the court would provide opportunities to improve its diversity of backgrounds and experiences. We might even want some justices who have experiences outside of the mainstream legal career path.

To Handle More Cases

The Court now handles 70 or 80 cases per year, compared to around 150 cases in the 1980s. With more justices and appropriate processes, the Court might be able to handle both more cases on their merits and issue fewer emergency rulings, which lack arguments and rationale for rulings.

To Get a Court that Democrats Want

As we’ve discussed previously, Republicans, working hand-in-hand with Crusaders, have worked systematically for decades to engineer a Court that would deliver the results that they wanted. They’ve been assisted by good fortune in terms of justice resignations and deaths, and the willingness of Republican Senate leaders to operate outside of accepted norms for the confirmation process.

Some would argue that the Democrats should similarly play hardball to get a Court more like what they want.

Why Not Expand the Court?

The country has resisted the temptation to expand the Court for more than 150 years, despite a strong push to do so by FDR, an enormously popular president who was elected to serve four terms.

Changing the Court’s composition whenever one party or another dislikes the Court’s rulings would certainly impinge on the Court’s independence. Indeed, changing the composition of national supreme courts is a favorite tactic of unstable governments and wannabe dictators. Examples include Argentina’s Carlos Menem, Venezuela’s Hugo Chavez, Turkey’s Recep Erdogan, and Hungary’s Victor Orbàn. Not company we want to join.

And, of course, what’s good for the goose is good for the gander. If Democrats do it now⁸, Republicans will likely do it when they have the power to do so.

Recent polling shows only one-third of the public supports expanding the Court.

Term Limits

Supreme Court justices are appointed for life tenure. This approach is an outlier: All other major constitutional democracies have either a mandatory retirement age or term limits or both. Likewise, forty-nine US states impose either a mandatory retirement age or term limits or both on their state Supreme Court justices. Implementing term limits would probably require amending the Constitution, although there have been some convoluted suggestions for evading that requirement.

Life Tenure

The rationale for life tenure is, of course, judicial independence. No justice will be removed from office or harmed economically for ruling against the political winds. This is an important protection, but one whose consequences have increased greatly since the country’s founding because of huge increases in life expectancy since that time.

Until the late 1960’s the average tenure of justices was around fifteen years. The average tenure of justices who left the Court since 1970 is around twenty-six years. With justices being appointed at younger ages (sometimes intentionally to give them long terms) and lifespans continuing to increase, we are likely to see even longer terms of service. For example, when Justice Barrett was appointed to the Court at age 49 she had a statistical life expectancy of more than 32 years.

Long terms potentially make for increasingly out-of-touch justices. A justice starts as a member of an already rarefied community of (typically) Ivy-league educated and Yale- or Harvard-trained lawyers and then joins a group of the most powerful, but completely unaccountable people in the country for what can be two, three, or even more decades⁹.

In today's world where rapidly-changing technology has a huge effect on our lives, we can no longer afford to have justices that come from outdated different world views. By way of example, Professor Chemerinsky mentions (p. 296) a case about the privacy of text messages and it was "clear at oral arguments that some of the justices did not grasp the distinction between text messages and e-mail."

Presidential Opportunity to Appoint

Ordinary citizens can only influence the appointment of justices through presidential elections.

Some presidents have no opportunity to appoint a justice — President Carter is the only full-term president who had no vacancy to fill.

Other presidents have many vacancies to fill. Through a combination of Republicans refusing to consider confirmation of President Obama’s nomination to replace the deceased Justice Scalia, Justice Kennedy’s strategically-timed retirement¹⁰, and Justice Ginsburg’s death, President Trump had three vacancies to fill.

Analysis

Term limits could be constructed to provide many advantages:

• Justices would not be pressured to retire strategically, nor would they be able to stay in office “past their prime”.

• Staggered terms could be used to more evenly distribute appointment opportunities across presidential terms, making nominations correspond more closely to what voters want rather than being “bunched” to certain presidents either by accident or cynical manipulation.

• The Court would have increased generational diversity, helping it to be more in touch with the country.

• With suitably long terms — 18 years is commonly discussed — a balance can be achieved between the vitality that comes from new talent and the learning that comes from time on the job.

• Knowing that term limits and term staggering will provide regular turnover in the Court, the nomination and confirmation process could be less partisan and hard fought, with less motivation for a party to use dirty tricks to get their way.

Polling, for what it is worth, shows two thirds of the public supporting term limits.

Obviously, some people oppose term limits. Their reasons are not compelling in my view, but the Commission’s report details the reasons should you be interested.

I believe that term limits would improve the Court, but that they should be implemented as part of a broader reform of the Court’s operation. I will discuss this below.

Changing the Appointment Process

The process for appointing justices to the Court is, to put it mildly, fraught. The Presidential Commission on the Supreme Court punted on this issue, declaring it out of scope of the President’s executive order establishing the Commission. My consideration of this issue is mostly guided by Professor Chemerinsky’s discussion in Chapter 9 of his book.

Nomination

Currently

Presidents get suggested nominees from whoever they please, from their cronies, other members of their party, partisan advocates like Leonard Leo and the Federalist Society (see my discussion here), from major donors, etc. They consider the politics of their nominations and confirmations (e.g., geography, support of important Senators for confirmation, public track record), get the FBI to vet the nominees (not thoroughly it would seem, based on Justice Kavanaugh’s confirmation process), then submit their choice to the Senate for confirmation.

This entire process is political, based on cronyism, ideology, and the politics of confirmation.

Merit-based selection

Professor Chemerinsky (p. 299) proposes a better way based on Alaska’s approach. Alaska’s constitution requires the governor to choose Alaska Supreme Court justices from among two or more persons nominated on merit by a judicial council.

There’s nothing preventing a president from following such a procedure. In fact, President Carter did exactly this for nominating justices to the Supreme Court (he had no vacancies, however) and the federal court of appeals. He created a US Circuit Judge Nominating Commission and had the Justice Department develop detailed guidelines for the Nominating Commission, which had to be a diverse panel — lawyers and non-lawyers — with an equal balance of Democrats, Republicans, and independents who would propose outstanding candidates based on their merit and not their membership in the legal equivalent of the “old boys network.”

The result was stunning and transformed the federal judiciary for decades:

“When Carter took office, just eight women had ever been appointed to one of the 500 federal judgeships in the country. … Carter appointed 40 women, including eight women of color. Similarly, before Carter, just 31 people of color had been confirmed to federal courts .... The peanut farmer from Plains appointed 57 minorities to the judiciary.

President Reagan dismantled this process and no subsequent president has reinstated it. Presidents could commit to such a process as part of election campaigns, as Carter did. Requiring this process would likely need to be through a constitutional amendment.

And, as President Trump has shown, a president intent on reshaping the federal judiciary in the opposite direction could certainly do so unless we required use of a nominating commission.

Nevertheless, established traditions can be very powerful. I’d be excited to see a modern president restart President Carter’s approach and advocate the it as an excellent way to improve the Supreme Court.

Confirmation Hearings

Professor Chemerinsky tells the story (p. 302) of testifying in 2006 before the Senate Judiciary Committee opposing the nomination of Justice Alito. At a recess, then-Senator Joe Biden told Chemerinsky that it was an exercise in “Kabuki theatre.” Others interviewed by Jeffrey Peck (see below) characterized nomination hearings as “farce,” “charade,” “circus,” “a model of escape and evasion” and “insufferable.” One interviewee noted that Senate questioning has become “air cover for some to justify a negative vote they have already decided to make.”

The originalist judicial philosophy adopted by today’s reactionary justices argues that all decisions should be made based only on the words written in the Constitution, interpreted in light of historical tradition. But we know from the actual decisions written by the originalists that they adhere to originalism only when it supports the way that they want to rule, much like some people interpret the Bible in accord with the conclusions they want to reach but ignore it at other times.

Justice Roberts said during his confirmation process that the justices are like umpires — they just “call balls and strikes.” But we know that in real life the justices’ ideologies deeply influence their decisions. In fact, that’s why Supreme Court nominations are such high-stakes theatre.

We ignore this, however, during the confirmation process, pretending that justices are Roberts’ metaphorical umpires. We don’t demand clear answers from nominees. Conservative nominees profess how open-minded and humble they are, just interpreting the actual words of the Constitution. Liberal nominees deny that they’re liberals and portray themselves as open-minded moderates.

Pointed questions about judicial ideology are essential for hearings that go beyond theatre, but are currently considered out-of-bounds. No law can change this, but culture within the Senate could.

Confirmation Process

We need rules with teeth that define the time table and process for confirmation hearings. We’ve seen that without such rules, Senate leaders can cynically and hypocritically manipulate the confirmation process either to deny presidents of the opposite party their opportunity to fill vacancies or to accelerate the process so that a president whose term is nearly over can fill vacancies. Professor Chemerinsky’s book pre-dates these Republican shenanigans, so does not address those issues.

It is clear, however, that a detailed timeline of expectations on the Senate confirmation process is necessary. My wife has long argued that President Obama should have seated Merrick Garland without Senate confirmation because the Senate refused to provide the requested “advice and consent”. This would have forced a constitutional crisis that might have yielded a solution. That didn’t happen.

Although the Commission didn’t address this problem, Jeffrey J. Peck, who previously was General Counsel and Majority Staff Director of the Senate Judiciary Committee, submitted to the Commission a proposal for rule changes that provides detailed time frames and procedures for the confirmation process. These are certainly not the only possibilities, but they take away all of the room for shenanigans that we’ve recently seen exploited.

There is no legitimate reason not to adopt clear rules and timelines for the confirmation process and everyone should recognize that, once it has been established that a party can get away with fudging the conventional rules of the game, so can the other party.

A Win-Win Proposal

Conservative Republicans and their Crusader allies have obtained a 6-3 reactionary supermajority on the Court, which includes several justices young enough to likely serve several more decades. It may be impossible to budge this judicial hegemony in the near term. But pressure can be applied if moderates and liberals work together.

The key win-win control point is to recognize that all the things that Republicans have done to establish their judicial dominance could be done by Democrats and their allies in the future. It would be in the interest of both parties, and certainly of the country, to reform the Court to be more legitimate in the public’s eye for the long term.

At the first opportunity, Congress should do the following:

1. Propose legislation to expand the Court gradually. As the history of FDR’s 1937 court-packing effort showed, it may not even be necessary to pass such legislation in order to effect change. The pressure alone might result in changing some of the justices’ behaviors. More importantly, the pressure might also convince some Republicans that they should participate in overall Court reform even at a time when conservative justices have a supermajority. Remind them of how unhappy they were during the Warren Court.

2. Press for term limits. Term limits are easy to explain and already have a lot of public support. Pushing the issue over the goal line of a constitutional amendment will require a prolonged effort. The repeal of Roe v. Wade may be a good impetus to drive support for such an effort.

3. Implement merit-based nomination of justices. This can be done initially by custom, as President Carter demonstrated, and maybe enshrined in a Court reform amendment down the road.

4. Adopt rules and timelines for the Senate confirmation process, something akin to Peck’s proposal. Again, emphasize that what’s good for the goose is good for the gander: Democrats will be able to do to Republican presidents what Republicans did to President Obama. We need to stop the tit-for-tat behavior.

5. Establish by example that it is appropriate to probe nominees’ judicial ideologies through specific questioning. Refuse to confirm nominees that evade such questions.

Obviously, none of this is easy. But we — Democrats, Republicans, and independents — must try before the public loses all faith in the Court’s legitimacy.

What’s Next?

The popular media tells a confusing story about the impending “debt ceiling” crisis. In the next newsletter, I will try to explain clearly and simply what the issues are and aren’t, and examine some proposals for moving forward.

1. The principle that the fruit of illegal searches may not be used against a criminal defendant.

2. If you’ve ever watched crime shows on TV, you know the Miranda rule: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

3. Chemerinsky is the Dean of the University of California’s Berkeley Law School.

4. For example, during his confirmation hearings, Justice Kavanaugh said that the Warren Court’s Brown v. Board of Education ruling was the single greatest moment in Supreme Court history.

5. Some argue that today’s Court ignores stare decisis whenever necessary to implement its ideological goals.

6. The Commission notes, however, that Congress definitely has the power to determine the number of justices. By choosing an even number of justices, majority voting would impose a supermajority requirement: for a six-justice Court a majority would also be a ⅔ supermajority; for an eight-justice court, a majority would be a 62.5% supermajority.

7. This is the 1857 decision that ruled that Black people were not citizens and that Congress could not prohibit slavery in territories.

8. With the House now controlled by Republicans, Democrats have probably lost the ability to expand the Court in the near term.

9. Currently, the longest-serving Supreme Court justice was Justice William O. Douglas, who served for 36 years and 7 months before retiring at age 77.

10. The idea of strategic retirement is to retire when a president likely to appoint someone of similar judicial ideology is in office. Justice Kennedy did this. Justice Ginsburg did not and died in office, only to be replaced by a very conservative justice.