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Reviews |  Don’t pack the yard.  Let the number of judges float.

An ideal solution should have neutral short-term political consequences and temper longer-term partisan passions to bolster the institution’s legitimacy with the public. Perhaps more importantly, as Supreme Court Commissioner Adam White said in his statement on the commission’s work, any solution should encourage “ongoing self-reforms, undertaken with a spirit of self-restraint.” “. On a practical level, any reform proposal must be feasible through legislation, not through a hard-to-achieve constitutional amendment.

Our plan, similar to a concept suggested by Professor of Law at the University of Chicago Daniel Hemel and relegated to a footnote in the commission’s report, achieves these goals and deserves greater attention: allowing the number of judges to float.

As many have pointed out in this ongoing reform debate, the Constitution says nothing about the size of the Supreme Court. The number of judges on the court was initially set at six in 1789 and increased to 10 in 1863 before finally settling at nine judges in 1869; all of these changes were made through acts of Congress. While some use it as an argument in support of increasing his size (conveniently just large enough to tip the ideological balance in his preferred direction), a better approach is to reject the notion of a definite court size altogether. .

Unlike other proposals, ours also touches on the underlying source of much of what erodes the Court’s legitimacy: the appointment and confirmation process itself.

Whether you start the story with Robert Bork’s 1987 confirmation conflagration, the 2016 hearings that never happened for Merrick Garland, or the events that followed after Brett Kavanaugh was charged with sexual assault in 2018 , the evidence is clear. These Senate confirmation battles dramatically shift perceptions of the court in predictably ideological and polarizing ways.

Whenever the erosion of norms has begun and whoever is guilty, the destabilizing politicization of the Supreme Court has reached its climax. First, the Senate’s 60-vote threshold for lower court nominees saw its demise, followed a few years later by the end of the filibuster for Supreme Court nominees. After declaring 10 months before an election too close to confirm a new justice when the president was of the opposing party, the Republican-controlled Senate settled for confirming Justice Amy Coney Barrett with less than 10 weeks to go before the election. 2020 presidential election. Now liberal activists are pressuring Judge Stephen Breyer to retire so Biden can name a successor before the Senate has a chance to change hands in 2022.

Each of these episodes was driven by individuals outside the court itself; the judges themselves had no control over how these actors treated the court, but the result directly undermined its reputation.

The Supreme Court’s institutional legitimacy rests entirely on the respect it receives from other branches of government and the general public – its reservoir of goodwill, which has accumulated over the past 232 years. This goodwill has enabled the Court to survive the most contentious decisions, but the recent prolonged political jostling by the Senate has brought the Court to the brink of an institutional crisis.

It is certainly true that part of what has fueled the court’s downfall in the public image is its own rulings, but few structural reform proposals can hope to change the rulings themselves. The best hope is to create incentive structures that reflect Madisonian ideals of countering ambition in government while softening the shock that events beyond the court’s control have imposed on it.

Here is how our proposal would work. Each president could appoint one (or possibly two, more on that in a minute) judge at some point in their first term. The start of the second year seems like a logical time; it would be after they had a stab in their main legislative program and before any midterm referendum. If re-elected, they could appoint another judge (or two) during their second term.

When vacancies arise due to death or retirement, they are not (directly) filled. The court can therefore have 10, 11, 12 or 13 judges, or seven, eight or nine. What this scenario would be not having is the ability for one president to make more appointments than another, nor the ability for a judge to plan his retirement to maximize the chances of an ideologically compatible successor, nor the ability for the Senate to hold a vacancy until ‘in the next election to place such an explicit partisan referendum on the court.

For judges, it would free them to retire when they choose, or choose not to retire at all, allowing them to serve for as long as they feel they are contributing to the court. If the judges themselves are satisfied that a particular size of court is appropriate, they would be free to set standards – formal or informal – on retirement age, with senior judges retiring when the court reaches a certain size or retreating in pairs through ideology. spectrum. If the court is as impartial as Justices Samuel Alito, Barrett, Breyer and Clarence Thomas recently made headlines for saying, it would give them the opportunity for their actions to mirror their words.

For chairs, this would create predictability and a sense of fairness. A frequent criticism of term limits is that they make overly explicit judicial appointments a price for winning the presidency. Could a similar criticism be made of our proposal? Certainly, but this dynamic is just as present in the current system, where vacancies arise randomly or strategically, as in a system where they arise in a predictable and equitable manner.

For the public, it would channel the passions aroused by judicial appointments into a predictable cycle where the stakes are constant from election to election. More importantly, both practically and symbolically, it would reflect the idea that the court – and each of its seats – belongs to the citizens of our democracy, not to any particular justice. Rather than occupy the seat of Justice Antonin Scalia or that of Justice Ruth Bader Ginsburg, we would fill our seats in each new presidential administration.

As for a few more practical matters, this proposal could be implemented by legislation in Congress and would not require a constitutional amendment. It is also true that under this plan the court would be as likely as not having an even number of seats rather than an odd number. This could encourage more strategic maneuvering to build broader consensus for narrower decisions, and it could sometimes leave the Supreme Court deadlocked, leaving a lower court’s decision in place. Neither seems likely to have a delegitimizing effect on the court in general, and both might in fact have modest positive effects. It is true that nothing in this proposal would directly alter current incentives to appoint young judges to maximize their tenure on the court. But eliminating the need to strategically time retirements could make it easier for presidents to appoint to the court more “professionally middle-aged” candidates with more diverse work experiences. At a minimum, it would do nothing to exacerbate the current trend toward younger candidates.

The question remains whether a president should choose one or two candidates. If so, the size of the tribunal would seem likely to become inexorably smaller. A single judge has already served 36 years (the replacement rate for a nine-judge tribunal with one appointment every four years), and although Judge Thomas appears to be the second, the average term will likely never exceed three decades. In the latter case, the size of the court would probably exceed, for some time, nine judges, unless the judges begin to retire at a younger age. Having two vacancies to fill at the same time could also encourage presidents to nominate at least one less ideologically strident candidate to help increase the likelihood of confirmation by the Senate, potentially filling a more balanced court on the ideological plane across the spectrum.

On our current trajectory, the Supreme Court is hurtling towards a continued cliff in public trust, with the court seen as a decidedly partisan player.

Increasingly, Democrats are realizing what Republicans have long known: Judicial appointments can be a powerful mobilizing force at the local level. In itself, the fact that people vote according to the types of judges they would like to appoint to the bench is not a problem; after all, we are an electoral democracy. But when the emergence of these vacancies is random or, even worse, appears to be manipulated for ideological purposes by judges or politicians, the Flight 93 mentality that every election could have existential and generational consequences for the balance of the court is increasingly pronounced (and not entirely untrue: that Donald Trump held three seats in four years while each of his three predecessors held only two in eight years was, well, inconsistent ).

Fundamentally, no reform proposal can “solve the problem” of the Court’s legitimacy. All we can do is create institutions that encourage restraint, reciprocity, and ambition colliding with ambition consistent with our long-standing Madisonian ideals. Is there a guarantee that a Senate of the opposing party would not retain the President’s nominee after our proposal is implemented? No. But rather than our current system, where this outcome is coupled with uncertainty as to when the next vacancy might arise, this approach would allow everyone to know exactly when the next decision point will arise and allow people to vote accordingly. with clear issues.

In Federalist No. 10, James Madison made the famous argument that flourishing factions clashed, resulting in moderate politics based on debate and compromise. But partisan politics today has reached a point unimaginable by our constitutional framers. We see very little substantive debate and even less compromise, and that discord has now enveloped the Supreme Court.

Our proposed solution honors the ideals of the founding era by ensuring that judges remain free from political reprisals – a Federalist imperative – while making court appointments predictable and regular occurrences – an anti-Federalist imperative. Perhaps most crucial of all, this setup allows voters to make an informed decision at the ballot box while reducing the incentive for senators to treat the court as merely a political stepping stone in their quest for re-election.


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