It’s possible to have a nonpartisan Supreme Court
On Thursday, a group of Democrats led by Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York introduced a bill to add four seats to the Supreme Court. Doing so, they said, would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans.”
In other words: We’ve decided to be just as politically ruthless about the Supreme Court as the GOP has been.
If you have a problem with that, you certainly can’t argue that only this effort is political. Either it’s all fine because the Supreme Court is unavoidably political and whichever party has the power should be free to shape the court however it likes, or we should try to do what we can to insulate the court appointment process from politics.
If the latter sounds good to you, there are ways to do it, even if you don’t like this Democratic proposal. They aren’t even that complicated.
Let’s remind ourselves of what brought us to this moment. Although Democratic presidential candidates have won the popular vote in seven of the past eight elections — a run of electoral success unprecedented in U.S. history — there is now a 6-3 supermajority of highly activist conservative justices on the Supreme Court.
That supermajority exists in part because of coincidences of timing, but mostly because of decisions made by the GOP. In 2016, then-Majority Leader Mitch McConnell, R-Ky. — with the support of every single GOP senator and the entire Republican Party — decided to change the size of the Supreme Court from nine justices to eight by simply refusing to allow Barack Obama’s nomination of Merrick Garland to proceed.
They claimed, in a preposterous lie that was repeated by everyone in their party, that they were doing so not for political advantage but because of an invented “rule” that no Supreme Court vacancies should be filled in the final year of a presidential term.
Once Donald Trump was elected, Republicans changed the size of the court again, to bring its number of justices back to nine. McConnell then gleefully admitted their dishonesty, saying that should a vacancy occur in the last year of a Republican president’s term, he’d fill it with all possible haste. Which is just what happened in 2020 when Justice Ruth Bader Ginsburg died and Republicans rushed Amy Coney Barrett’s nomination so she could be seated before Trump lost his reelection bid.
Along the way, one GOP senator after another insisted angrily that to even suggest ideology or politics might play any part in either their own enthusiasm for Barrett or the decisions she would eventually render was deeply offensive. She herself claimed to be a kind of naive genius; it wouldn’t just be inappropriate to reveal how she might rule on contentious questions, she said, it would be impossible for anyone to even predict, so unsullied was she by even the tiniest particle of political opinion.
Today, Republicans are once again claiming that questions about the court shouldn’t be tainted by politics, a feat of dishonestly so mind-boggling that attempting to describe it strains the limits of the English language.
So how about, for a change, we speak plainly about what’s actually going on with regard to the court?
The facts are these. Republicans in recent years have manipulated the size and makeup of the Supreme Court to serve their own political and policy ends. Some Democrats are now proposing to do the same thing. Republicans would prefer their own manipulation be allowed to stand, while Democrats’ proposed manipulation be stopped.
But if we could agree that all this politicization of the court is not good for the country, what could we do about it?
The answer would be to reform the appointment process, and the best idea I’ve encountered may be one laid out by Alicia Bannon of the Brennan Center for Justice.
At the beginning of each presidential term, the president would be allowed to nominate two new justices. If those seats were unfilled for whatever reason, the next president would not be able to fill them, at least partially mitigating the incentive for obstruction. The size of the court would fluctuate, but there would be little reason for strategic retirements, and every nomination fight might not feel like the fate of the world was at stake.
There are variations of that plan, including one that would impose 18-year term limits on justices, two of which would then have to step down in every presidential term. To be clear, either of those reforms wouldn’t mean that any individual appointment would be totally insulated from politics. They would mean, however, that the appointment process as a whole could proceed on a regular schedule with a level playing field.
I find it difficult to formulate a persuasive objection to such a system — though Republicans will certainly try. Their real objection, however, is obvious: At the moment they have their supermajority, ill-gotten though it might be, so they’d like to keep everything as it is.
But the Supreme Court has changed many times in American history, and we can reform it if we choose. We just have to decide that the way things have gone recently is unacceptable. That’s something we ought to be able to agree on.
Paul Waldman is a senior writer at The American Prospect.