It’s all Franklin Delano Roosevelt’s fault. Americans are afraid to tackle Supreme Court reform.
For many people, his ill-fated court-packing plan is a scary reminder of the dangers that await anyone foolish enough to try to tinker with the Court’s institutional design. We think the way to ensure the Court is above politics is to pretend it is above politics and leave it alone.
Whatever the Court does, we take for granted that there will be nine Justices, each of whom will be appointed to serve for life. As The American Prospect’s Ryan Cooper noted last month, reverence for the Court has long been an aspect of what he calls “Constitutional fetish worship.” That particular kind of reverence “has been a feature of American politics from practically the moment it was enacted.”
But despite that long tradition, court reform is now back on the table.
Spurred on by the radicalism of the Court’s current conservative and anti-democratic majority and by the travesty of its decisions on reproductive rights, deference to administrative agencies, and presidential immunity, the American public has lost faith in the Supreme Court.
In response to those developments, President Joe Biden and Senate Majority Leader Chuck Schumer have proposed changes to the way the Supreme Court functions.
Looked at from the perspective of the present moment, the changes they are proposing seem bold, radical, and kind of earth-shattering. However, from the perspective of the long sweep of American history, they are just another moment in which efforts have been made to change the Court.
Even the current size of the Court has not escaped the change agenda. The Constitution, Keith Thirion of the Alliance for Justice observes, “does not specify the size of the Court, and Congress originally set it at six members. It has been changed many times since then to five (1801), back to six (1802), seven (1807), nine (1837), 10 (1863), seven again (1867), and then back to nine (1869).”
And let’s be clear: court reform is not today and has never been a purely technocratic project. It is, and has been, informed by the political imperatives of the times in which it has been proposed and undertaken.
That fact is apparent in the three proposals Biden unveiled on July 29. The first is a constitutional amendment to reverse the presidential immunity decision. The odds of its passage are slim to none.
The amendment expresses outrage for those appalled that a President could be immune from prosecution for crimes committed while in office. But, it can also provide a focus for public education about the dangers of the Supreme Court’s Trump v. United States decision.
More modestly, President Biden proposed term limits for Supreme Court Justices. In his view, the President should be able to appoint a Justice every two years to spend 18 years in active service on the Supreme Court.
As the White House explained when the President proposed term limits, “The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices. Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come.”
Term limits for Justices are not, however, just a familiar practice in other countries. In fact, the highest appellate court in every state in this country has term limits for its judges, with only four exceptions.
The outliers, the judges with lifetime appointments, are found in the highest courts in Massachusetts, New Hampshire, New Jersey, and Rhode Island. Elsewhere, term limits run from a minimum of six years to a maximum of 15 years for the District of Columbia Court of Appeals judges.
The President also called on Congress to enact “binding, enforceable conduct and ethics rules that require Justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.” Again, we can look to state supreme courts for examples of how such binding ethics rules work.
Most states have adopted the American Bar Association’s Model Code of Judicial Conduct as a foundation for their own codes. These codes typically cover principles like impartiality, integrity, and independence, and they apply to all judges within the state, including those on the state supreme court.
Enforcement of ethics codes at the state level is typically handled by a judicial conduct commission or similar body within the state. Violators face a range of consequences, from reprimands to removal from office.
Following Biden’s proposals, Senator Schumer introduced the “No Kings Act“ on August 1. His proposal, as the Associated Press reported, “would attempt to invalidate the decision by declaring that presidents are not immune from criminal law and clarifying that Congress, not the Supreme Court, determines to whom federal criminal law is applied.”
It is, moreover, a direct challenge to the Supreme Court’s authority over constitutional interpretation.
It says that “the Constitution of the United States does not grant to any President any form of immunity (whether absolute, presumptive, or otherwise) from criminal prosecution, including for actions committed while serving as President.”
If enacted, it would remove the Supreme Court’s appellate jurisdiction in criminal proceedings against Presidents, former Presidents, vice presidents, or former vice presidents to dismiss charges, halt proceedings, or grant relief on the basis that an alleged criminal act was within their constitutional authority or related to their official duties.
The Schumer bill goes further in its jurisdiction-stripping ambitions. “The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act…on the ground of its unconstitutionality.”
Those provisions reflect the power granted to Congress in Article III, Section 2 of the Constitution: “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.”
Jurisdiction stripping, especially regarding matters of constitutional interpretation, makes some commentators nervous and rightly should not be undertaken lightly. The Washington Post’s Ruth Marcus is one such commentator. On Tuesday, Marcus wrote that “telling the high court what kinds of cases it can and cannot hear, as Schumer’s bill would do, is a dangerous and constitutionally questionable mechanism for dealing with Supreme Court decisions with which Congress disagrees.”
Marcus says:
Jurisdiction-stripping was a bad idea when it was embraced by conservatives as a way to countermand liberal Supreme Court rulings on school prayer, abortion, busing and gay rights.” She wants to stoke our fear of this approach to court reform by recalling that it was “an approach endorsed by the likes of the late Sen. Jesse Helms (R-N.C.) and conservative activist Phyllis Schlafly.
Helms, an archconservative who served in the Senate from 1973 to 2003 proposed stripping the court of its ability to hear constitutional challenges to school prayer. In 2006, Schlafly urged Congress ”to pass legislation defining the jurisdiction of the federal courts so that supremacist judges will not be able to ban the Pledge of Allegiance, the Ten Commandments, the Boy Scouts, or the traditional definition of marriage as the union of a man and a woman.”
Despite the danger that it can be misused, jurisdiction stripping is sometimes justified. It is justified in response to decisions like Trump v. United States. It is justified, as NYU Law Professor Christopher Jon Sprigman says, when it is used to “defend democratic self-governance against courts attempting to enforce their political preferences as law.”
Article III, Springman continues, clearly gives “Congress the power to take back from the courts, and in particular from the Supreme Court, final authority to determine the Constitution’s meaning.”
The ultimate check on the wisdom of any congressional effort to strip the Supreme Court of jurisdiction, as the Schumer bill would do, rests with the people. The effectiveness of that check is never assured.
However, it was exemplified by the fact that neither Helms nor Schlafly was able to accomplish what they wanted to accomplish.
While reform of the Supreme Court is long overdue, there is no guarantee, as the FDR example suggests, that it will succeed or be accepted by the American people. But fear should not stop us from considering the wisdom of Biden and Schumer’s proposals.
We should remember an important lesson of our history as we consider them. Jamelle Bouie summarizes that lesson as follows: History teaches that “judicial supremacy was constructed…[and] also contested, and that contestation is a recurring part of American political life.”
Those skeptical of that contestation should, as Bouie explains, “know that if they do not act, they will not govern.”
Biden and Schumer’s proposals are a response to the fact that, to borrow Bouie’s words, “At no point in the last 20 years have the majority of Americans voted to give conservative jurists unchecked power to interpret the Constitution. But those jurists have it, and that gives them the power to unravel the federal government as Americans have known it since Franklin Roosevelt took aim at the Depression.”
Those proposals give us a chance to govern, and we should not be afraid to take it.
