TACKLE AND BLOCK
Packing the Supreme Court isn’t the Democrats’ only option for overcoming a conservative majority. by Jacob Jarvis
→ If President Donald Trump succeeds in appointing a successor to the late Justice Ruth Bader Ginsburg before the election—or, if he loses, in a lame-duck session—how might Democrats try to overcome the resulting clear conservative majority on the high court?
Much of the focus so far has centered on the possibility of expanding the bench to add liberal justices—an option dependent on Democrats winning not just the presidency in November but also control of Congress. Packing the court, though, is just one strategy that Democrats might try to counter a judicial imbalance that works against them. Here are four other methods party leaders might employ.
The 15 Justices Plan
Similar to packing the bench in some respects, this proposal would expand the number of justices with an even split in terms of partisan affiliation.
Former Democratic presidential hopeful Pete Buttigieg put forward such a plan during the primaries, suggesting the court could be expanded to 15 members with the aim of restoring some political neutrality to it. The 15 would be made up of five conservative, five liberal and five non-political justices, with the latter group being chosen by the first 10.
Rotate Judges
Another suggestion that emerged during the Democratic primaries, this one via Vermont Senator Bernie Sanders, would be to rotate the justices. “That brings in new blood into the Supreme Court,” he said. The method in which justices would be rotated is unclear, though it would likely be a complex process with those moving down from the courts needing to be cooperative and those moving up likely needing to be nominated and voted in also.
Term Limits
Proposals to limit the terms of Supreme Court justices have been put forward in the past, with the suggestion of an 18year tenure followed by service on a lower federal court.
“Lifelong appointments for justices are resulting in increasingly longer terms, with significant implications for the politicization of the court,” wrote Maggie Jo Buchanan, the director of legal progress at the Center for American Progress, in a piece arguing the case earlier this year. “Creating term limits for justices would establish regularity in vacancies and help to avoid an escalation of the negative outcomes linked to justices’ ever-longer lifetime tenures.”
Disempowering the Court
Some legal scholars advocate taking some power away from the Supreme Court—moving certain cases out of its jurisdiction, for example, or requiring a supermajority decision to
strike down laws. At present, it only requires a five to four simple majority.
“These reforms take power away from the Court, redirecting it to the political branches,” said Ryan Doerfler, of University of Chicago Law School and Samuel Moyn of Yale University in an article earlier this year for the California Law Review. “While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena.”