SUPREME COURT DOESN’T NEED TO BE REFORMED

With Judge Amy Coney Barrett’s confirmation to the Supreme Court all but certain, Democrats are toying with ways to reform the court. Former vice-president Joe Biden plans to suggest a bipartisan commission to study the options. Unfortunately, the proposals all have serious flaws. Either their constitutionality is doubtful or they would undercut the tremendously valuable role that the court plays in protecting liberty and equality.

The most dire of t hese proposals is court-packing. I’ve written before that any attempt to expand the court is likely to fail, and for good reason.

But what about more commonsensical ideas, like term limits for justices? Logically, this would be a huge improvement over the current system. Instead of the calendar of replacement being driven by the randomness of justices’ ageing processes, illnesses and retirement decisions, we would have a relatively regular and rational schedule. What we would lose in the occasionally brilliant long-serving justice we would gain in commonsense planning.

The problem is that the constitution says that the justices serve “during good behaviour”. It’s pretty clear that this didn’t and doesn’t mean that they should serve based on term limits, but indefinitely.

That’s why the tradition in the US has long considered such term limits unconstitutional. There are some creative arguments to try and get around this; but in the end, the Supreme Court would have to rule on whether it would be constitutional to create new judgeships with term limits attached. I seriously doubt the court would uphold term limits for new justices.

Another approach would be for Congress to pass laws with riders that specifically say that the Supreme Court may not weigh in on their constitutionality. In the past, it was mostly conservatives who advocated for such laws, which are known as “jurisdiction-stripping” laws because they take away courts’ jurisdiction.

Conservatives used to be worried about liberal justices striking down unconstitutional provisions in their laws; now, with the court’s changing balance, it’s liberals who are concerned.

There is no definitive answer to whether jurisdiction-stripping is constitutional. The text of the constitution appears to allow it in certain circumstances. But some constitutional liberals have maintained that the Supreme Court must retain an inherent authority to review the constitutionality of government action.

You can see why: If Congress could exempt laws from judicial review, they might make a habit of it. The law against flag-burning, for example, would probably have been passed with a provision saying the court couldn’t strike down.

Moreover, the constitutionality of jurisdiction-stripping would ultimately be decided by, you guessed it, the Supreme Court. It’s easy to picture the justices striking down the whole idea that they would not be able to strike down laws they found unconstitutional.

Some have proposed introducing legislation that would require the Supreme Court to decide certain cases not by a majority but by a supermajority, requiring, say, six or seven votes rather than five.

I seriously doubt this would pass constitutional muster. Common law courts traditionally decided cases according to what a majority of the judges or justices thought. And it seems reasonable to argue that the Supreme Court’s rules for how to decide cases should be a matter for the court, not Congress.

There is even an obscure 1871 case, US versus Klein, in which the Supreme Court struck down a law passed by Congress on the theory that the law was infringing on the court’s prerogative by imposing a rule of decision that dictated outcomes.

There are some other ideas out there too. We could pick Supreme Court justices by lottery. We could ask a group of justices — with an equal number appointed by both Democrats and Republicans — to in turn choose other justices, who would serve for limited terms. These are creative ideas.

Behind all of these questions lurks a deeper one: Does the Supreme Court really need reform? It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the past 30 years gave us gay rights, gay marriage, and now statutory protection for the rights of trans people. Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans. ©2020