The U.S. Constitution gives white rural voters—who have increasingly tended to vote Republican in recent years—disproportionate representation through the Senate and the Electoral College. Thus, despite losing the nationwide popular vote in most federal elections over the last several decades, Republicans have had an edge in the two institutions responsible for judicial appointments. Not content with those spoils, Mitch McConnell and the GOP-controlled Senate have played hardball to gain still further advantage. When Justice Antonin Scalia died in February 2016, they piously announced that the American People should have a voice in selecting his successor, denying a hearing to Barack Obama’s nominee, the center-left Judge Merrick Garland. Then, when Justice Ruth Bader Ginsburg died in September of this year, McConnell and nearly all of his fellow Senate Republicans turned cartwheels to confirm Donald Trump’s nominee, the pretty-far-right Judge Amy Coney Barrett, even as millions of Americans were already casting general election ballots.
Many Democrats have cried foul. If Republicans so egregiously flout norms, they say, Democrats should respond in kind: should Joe Biden win the presidency and Democrats capture the Senate, Congress should increase the size of the Supreme Court and give a President Biden the chance to name enough Justices to outweigh the current conservative majority. Critics call the proposal “Court packing” to evoke FDR’s failed effort in the 1930s, although proponents insist that Republicans have effectively packed the Supreme Court and lower courts, so that SCOTUS expansion would be better termed “unpacking.”
By whatever name, Court expansion has become a campaign issue. Yet until last week, Biden dodged the question whether he favors it. Perhaps calculating that the issue would drive a wedge between progressive Democrats (who favor expansion) and swing voters (who either oppose it or who would find other messages more appealing), Biden waffled. On one hand, he stated that he was “not a fan” of expansion; at the same time, he did not rule it out, insisting that any stance he took would become a distraction from the immediate problem created by the Republicans’ hypocritical actions.
Last week, Biden came off the fence—and (to mix metaphors) punted. He said that if elected, he will convene a bipartisan commission of constitutional scholars to study and recommend court reforms. Because there is no guarantee that I will be asked to serve on that commission (ahem!), I shall take the liberty of briefly exploring four possible reforms: (1) term limits; (2) Court expansion; (3) Court shrinkage; and (4) jurisdiction stripping. As I shall explain, any assessment of the relative costs and benefits of these and other proposals depends crucially on what exactly one thinks the problem is.
Defining the Problem
Most Democrats see the current problem as one of what legal scholars Joseph Fishkin and David Pozen term “asymmetrical constitutional hardball.” Republicans have lately ignored longstanding norms and pushed on every lever they control to gain unfair advantage. If that is indeed the problem, then any proposed solution should be evaluated by asking whether it erases the advantages Republicans have unfairly gained. We might deem a solution that responds to Republican norm breaking in kind as one that aims at symmetrical constitutional hardball.
Biden announced his plan for a bipartisan commission in a 60 Minutes interview, during which he also said that the Supreme Court should not simply be a tool for partisan ends by whichever party happens to control the elected branches. That framing does not absolutely rule out a robust Democratic response, if it is proportional and limited—adding two Justices to the Court, say, rather than four or some even larger number.
But in stating that he would appoint a bipartisan commission, Biden signaled that he may define the problem differently. After all, it will be difficult to find conservative Republicans who think that their party has abused its power to name Justices. Republicans will likely say that Democrats share responsibility for any current dysfunction, pointing to the elimination of the filibuster for lower court judges when the Democrats controlled the Senate as the justification for its elimination for Supreme Court nominees when Republicans controlled the chamber. They might also point to the role that the Democrats played in eroding a norm of deference to presidential nominations. Scalia was confirmed unanimously in 1986; Ginsburg was confirmed by a Senate vote of 96-3 in 1993; but beginning with George W. Bush’s nominees in 2005, Senate confirmation votes have increasingly been along party lines.
Who’s right in this debate is not my current concern. The point is that Democrats and Republicans will pretty clearly disagree. There may very well be good reasons for Democrats to favor hardball tactics, at least for the short run. But a bipartisan commission is unlikely to achieve consensus favoring a hardball approach.
Why, then, does Biden think that a bipartisan commission would favor any reforms? The short answer is that there are flawed features of our current system that lack any clear partisan valence. The U.S. Supreme Court is the only apex court in the world with jurists who serve for life. Its decisions are more consequential than those of courts in most other countries because of how difficult it is to amend the Constitution or even to obtain the consensus to override the Court in statutory cases.
Life tenure and enormous power make each appointment extremely consequential. Thus, Presidents (especially Republican ones) favor young nominees. The randomness of the appointments process also requires sitting Justices to make difficult choices. Most of us decide when to retire based on such factors as our health, continued ability to do the job, and how much money we have saved. By contrast, Supreme Court Justices who care about their legacy must also attempt to predict who will win the next election and whether they will be alive in four or eight years.
Term limits are an obvious solution to the problem of life tenure. One proposal—put forward most forcefully by Duke Law Professor Paul Carrington and the late Cornell Law School Dean Roger Cramton—would fix a Justice’s term at 18 years. That term is in line with the range in other constitutional democracies and fits perfectly with a nine-Justice Court and a four-year presidential term. After a phase-in period, each President would have exactly two appointments per term. Because it lacks a clear partisan tilt, the Carrington/Cramton proposal has garnered considerable bipartisan support, starting with its proponents: Carrington is a Democrat; Cramton was a Republican.
The term limits proposal has a great deal going for it, but it might not be possible without a constitutional amendment. Article III of the Constitution says that “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,” a term of art that has long been understood to mean life tenure, absent the sort of misconduct that warrants impeachment and removal. How, then, could Congress set fixed terms of 18 years? Under the most popular version of the Carrington/Cramton proposal, after 18 years, a Supreme Court justice would be reassigned to a federal appeals court, with no diminution in salary.
But isn’t an appeals court judgeship a different “office” from a Supreme Court Justiceship? Maybe not. Proponents point out that in the early Republic, Justices did double duty by “riding Circuit” and hearing cases as lower court judges. Even today, they can sit by assignment on a lower court.
Whether an 18-year (or other) fixed term would be valid is not entirely clear, nor is it clear whether the Supreme Court itself would have the authority to pronounce on its validity. But whether or not permissible without a constitutional amendment, something like the Carrington-Cramton term-limits proposal is the front-runner to emerge from a truly bipartisan commission, given the likely skepticism that Republicans would exhibit towards the hardball approaches.
Hardball: Court Expansion; Court Shrinkage; and Jurisdiction Stripping
Much attention has been paid to Court expansion, which would clearly be constitutional. The Constitution does not set the size of the Supreme Court, which fluctuated during the nineteenth century. The convention of a nine-justice Supreme Court is pretty clearly a norm, but if recent experience teaches anything, it is that norms falling short of law can be broken.
The chief disadvantage of expanding the Court’s size is that doing so could initiate a pattern of escalation. Democrats believe that Republicans stole two seats. To compensate for those two would require the addition of four new seats—two to cancel out the votes of the current occupants (Justices Gorsuch and Barrett) and two more to substitute for the ones to which Democratic appointees would have been entitled. But even if Democrats were to add only two new seats, Republicans will regard that move as an unprovoked attack and respond in kind if and when they control the Presidency and both houses of Congress. Perhaps that is a risk worth taking, but it is clear that this would not be Biden’s favored approach.
Another possibility would be to go in the opposite direction and eliminate seats on the Supreme Court—presumably those currently occupied by the four most conservative Justices: Thomas, Alito, Kavanaugh, and Barrett.
Would that be constitutional? If the Carrington/Cramton plan is constitutional so long as Justices keep their salaries and can serve on the lower federal courts, then Supreme Court shrinkage should be too. Justices Thomas, Alito, Kavanaugh, and Barrett would keep their current salaries but become Judges Thomas, Alito, Kavanaugh, and Barrett.
There is arguably a precedent for shrinking the federal judiciary through the elimination of identifiable judgeships. In 1802, Congress passed and President Thomas Jefferson signed a law repealing the so-called Midnight Judges law that the outgoing Federalist Congress had enacted, thereby eliminating a number of federal judgeships. Although the Supreme Court as a body never formally adjudicated the Repeal Act’s validity, the Court effectively acquiesced in it in the 1803 case of Stuart v. Laird.
Yet another hardball tactic would be to deprive the Supreme Court of its ability to decide whole classes of constitutional cases—such as those involving the scope of congressional power, gun control, and other matters where a Democratic Congress might fear intervention from a conservative Supreme Court. Such jurisdiction stripping appears to be consistent with the Constitution’s Article III, which permits Congress to make “exceptions” to and “regulations” of the Supreme Court’s appellate jurisdiction.
To be sure, hobbling the Supreme Court’s ability to produce conservative rulings might simply transfer power to the Republican-leaning lower federal courts. But Congress could overcome that problem by limiting the lower courts’ powers too. Article III vests in Congress the power to create or eliminate the lower federal courts—and thus to tinker with their jurisdiction.
The greater worry would be that the Supreme Court might invalidate a law substantially constraining its own jurisdiction. As I explained in a 2018 Texas Law Review article, some scholars have argued that there are implicit limits on the power of Congress to strip the Supreme Court of jurisdiction. To date, the Court has not endorsed any of these limits (except for giving some hints in the distinctive context of habeas corpus suspension), and the orthodox conservative position allows Congress broad power to strip Supreme Court jurisdiction. But it would be naïve to assume that conservative Justices would stick to their previously articulated principles if they saw their power seriously threatened.
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Perhaps ironically, the most clearly constitutional response to the current crisis—Supreme Court expansion—is arguably also the most radical. That fact should point the way to a potential compromise solution. Congress could pass a law along the lines of the Carrington/Cramton proposal for 18-year fixed terms, so long as it contains a fallback provision making clear that if the courts invalidate the term limits, Court expansion would automatically follow. Making that fallback effective would be tricky, given the Court’s ability to control its docket and thus the timing of its decisions.
But the obstacles are not insurmountable. As I argued in a 2007 Columbia Law Review article, such fallback laws are generally permissible. By carefully including timing triggers keyed to the political cycle, Congress and a President Biden could ensure that if the Court were to invalidate the bipartisan term limit approach, Court expansion would follow automatically.
How so? There will be time enough to draft the precise statutory language if and when Democrats take the White House and the Senate. In that event, I shall be happy to supply draft legislation.