Don’t pack court, set term limits
The left is up in arms about the U.S. Supreme Court, demanding that the number of justices be expanded so that recent conservative nominees can be offset.
So far, President Joe Biden has chosen to sidestep the issue, appointing a commission of legal experts to study the topic of Supreme Court operations more broadly.
Last week, the commission issued its report. Although the commission studiously maintains that it is rendering no conclusions and offering no recommendations, its unanimous exposition points reform efforts in a more production direction, toward term limits for justices.
The left is up in arms for two reasons. First, a feeling that Republicans played the confirmation game unfairly by refusing to consider Merrick Garland’s nomination after the death of Justice Antonin Scalia in the last year of Barack Obama’s presidency, while rushing through the confirmation of Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg in the last year of Donald Trump’s. There’s merit in this sentiment.
Second, there is now a solid conservative majority on the court. That not only means that the court won’t be creating new liberal policy gains, which the left views as the role of the court in interpreting a living Constitution. Old victories are potentially in jeopardy, depending on the extent new justices view themselves as bound by precedents.
An independent judiciary is a cornerstone of the American system of government. An independent judiciary is the bulwark for the rule of law which, even more than elections, is what distinguishes free countries from authoritarian ones.
Liberals have had the upper hand on the high court for well over a half century. If the first time the conservative judicial philosophy of originalism and textualism gains a majority, the response is to expand the court to render it again in the minority, the country will have taken a very long stride toward eviscerating an independent judiciary.
If Republicans gain control of the presidency and the Senate again, what’s the argument that they shouldn’t also expand the court to restore an originalism and textualism majority?
This is a game with no foreseeable end.
Nevertheless, there is a lack of political accountability and responsiveness in the current system of appointing justices to lifetime tenures.
An independent judiciary means no political accountability for individual decisions. There are different judicial philosophies, the living Constitution vs. originalism and textualism. And over time and indirectly, the judiciary should be responsive to the preferences of the electorate about the judicial philosophy under which they want to be governed.
The Constitution provides this check and balance, the ability to shape the judiciary indirectly and over time, through presidential nomination and confirmation by the Senate. However, in a system of lifetime tenure, this occurs haphazardly, whenever an existing justice retires or dies.
The result is an appointment and confirmation process with far more high-stakes politics than the framers intended. Each president plays for keeps, nominating lawyers in their 40s or early 50s who can serve for decades.
The commission’s report spends quite a bit of time analyzing proposals that would establish staggered terms for justices. The alternative given the greatest consideration would create a single 18-year term, crafted in a way that every president, after a phase in period, would have two openings come up in each four-year presidential term.
The 18-year term would protect the judicial independence of individual justices. But creating a regular cycle of openings would reduce the stakes for each appointment, perhaps lowering the unhealthy political intensity that currently envelopes the nomination and confirmation process.
Biden had trouble getting conservative legal scholars to participate on his commission. It tilted heavily to the left.
However, in the event, that may be beneficial, if it deflects the reform energy on the left from expanding the court to considering term limits.
Despite the protestations of policy neutrality, I suspect this was an intended result. The report spends more than twice as much space discussing term limits as court expansion, and gets into the weeds about specifics and transition options.
If this report influences the debate, as it should, Biden’s sidestep will have proved productive.