Joshua Niemtzow, Law & Public Policy Scholar, JD Anticipated May 2021
On October 26th, the United States Senate voted to confirm then-Judge Amy Coney Barrett to the Supreme Court eight days before the 2020 U.S. presidential election. While Judge Barrett received the American Bar Association’s “well-qualified” rating in 2017 when she was confirmed for the 7th Circuit, her present confirmation has sparked intense political controversy and emotionality. That degree of passion and contention has primarily been produced by two realities: the Senate’s 2016 decision to block President Obama’s nomination of Judge Merrick Garland to the Supreme Court, and fear among liberals that Justice Barrett’s confirmation could cement the death of the Affordable Care Act and give rise to a weakening—if not the outright elimination—of Roe v. Wade. Justice Barrett’s nomination has thus brought into focus the significant political and policy implications of the makeup of the Supreme Court. But in fact, the Court’s outsized role in our politics predated recent events.
At its core, the fact that the Court now plays such a prominent political role in our system of government is merely a symptom of our increasingly dysfunctional political system. As Senator Ben Sasse (R. Neb.) noted in a speech during the Senate hearings concerning the nomination of then-Judge Brett Kavanaugh to the Supreme Court, our justices are increasingly called on to resolve major policy disputes:
In our system, the legislative branch is supposed to be the center of our politics. . . . For the last century . . . more and more legislative authority [has been] delegated to the executive branch every year. This transfer of power means that people yearn for a place where politics can actually be done. And when we don’t do a lot of big actual political debating here, we transfer it to the Supreme Court. And that’s why the Supreme Court is increasingly a substitute political battleground . . . we look for nine justices to be super legislators. We look for nine justices to try to right the wrong from other places in the process. . . . [People who want Supreme Court justices to empathize with them] are talking about trying to make the justices do something that Congress refuses to do.
Then-Judge Barrett echoed this sentiment in her opening statement before the Senate Judiciary Committee: “[C]ourts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.”
The common thread that Senator Sasse and Judge Barrett have picked up on relates to the fact that, over the past three decades, our political system has become increasingly polarized. As a result, policymaking in and among the political branches of the federal government has increasingly been defined by partisan gridlock. Such stalemate has made it nearly impossible in recent years for the political branches to enact comprehensive, durable legislation that addresses the salient policy issues facing our nation. One important consequence of that reality is that the judiciary in general and the Supreme Court in particular have become far more central to policymaking at the federal level via their power to determine the constitutionality of major, highly-contentious pieces of legislation.
In light of that context, the relative importance of nominations to the federal judiciary, including and especially to the Supreme Court, has escalated dramatically. Whereas legislative initiatives may regularly fail to garner the legislative majorities and/or the presidential signature necessary to become law, the confirmation of a single Supreme Court justice may well result in the same substantive policy change via a 5-4 decision.
Amid those circumstances, questions have arisen with respect to whether the manner in which the Supreme Court is presently constituted must be amended. While changing the structure of the Court cannot be expected to solve the larger divisiveness of our politics, such reform would at least reduce the stakes of any particular appointment to the Court.
Proposals to change the composition of the Court or to reduce its influence are not new—recall the “court packing plan” proposed by President Franklin Delano Roosevelt following a string of Supreme Court decisions that threatened the existence of several of his New Deal programs. However, such proposals have gained increased traction since the Senate refused to consider Judge Garland’s nomination to the Supreme Court in 2016.
Here are a few proposals:
Increasing the Number of Justices
While there is no inherent constitutional requirement that the Court be comprised of nine justices (between 1789-1870 it fluctuated between five to ten justices), the number has remained at nine since 1869.
One plan proposed by Professors Daniel Epps of Washington University in St. Louis and Ganesh Sitaraman of Vanderbilt Law School, would increase the court’s size to fifteen: five justices would be affiliated with Democrats, five with Republicans, and five “apolitical” justices would be chosen by the first ten. The ten political justices would continue serving life terms, but the final five would serve one-year, nonrenewable terms. This plan borrows from a concept used in commercial arbitration.
However, the proposal suffers from a major problem: it may violate the Constitution’s “Appointments Clause” by allowing judges to select other judges. Additionally, while attempting to create ideological balance, it could further erode even the guise that our judges are non-partisan, because it would specifically label ten justices as either Democrats or Republicans. This goes against the “umpire” view of judges emphasized in our civic education.
Another proposal simply suggests adding more Democratic-appointed justices through a majority vote after eliminating the filibuster. This would lead to more ideological balance on the Court in the short term, but it would also further undermine public confidence in the integrity and independence of our judges and would erode the structural predictability of the Court. If Democrats add more judges, what would stop this from becoming a tit-for-tat response each time a new party gains unified government?
Ending Life-Tenure
The United States is the only western democracy that gives life tenure to its high court judges. State governments largely mimic the federal structure for their courts, but even then, only one state affords lifetime tenure for its judges (Rhode Island). Until President Nixon nominated four justices in four years, Supreme Court justices served for an average of 15 years. Today, the average is nearly 28 years!
One proposal first championed by Federalist Society co-founder Steven Calabresi and Professor James Lindgren, suggests an 18-year term with a new vacancy every odd-numbered year. This would eliminate the rush to prioritize younger and younger candidates and would preserve judicial independence by insulating justices from removal just like in the current system.
Would this proposal require a constitutional amendment? The Constitution specifies that justices serve terms of “good behavior.” Historically, that concept has been interpreted as providing justices with lifetime tenure and making them removable only by impeachment. Calabresi and Lindgren concur with this view. They note that “most of the advocates of Supreme Court term limits” also agree with this view. However, others, like Professor Jamal Greene of Columbia Law School, argue that if the statute authorizing term limits preserves some mention of “good behavior”—for instance, by providing that judges can only be removed for violating good behavior—a statutory term limit would be constitutionally permissible.
Another proposal to overcome the constitutional hurdle of imposing term limits is to reassign the justices to other federal courts. They would not technically be removed, and thus would still serve terms of good behavior. But this proposal could also be constitutionally suspect, in the same way that an outright term limit might be.
Mandatory Retirement
Thirty-two states have a mandatory retirement age for their judges, with 70 being the most common cutoff. Even with Justice Ginsburg’s passing and two recent Supreme Court appointments, the average age of the Court was nearly 66 prior to Justice Barrett’s confirmation. Notably, Justice Ginsburg served until she was 87 and Justice Stevens retired shortly before his 90th birthday. It is not uncommon for justices to serve into their 80s.
While in principle, a retirement age of 75 appears both reasonable and rational if a mandatory retirement approach were taken, such a proposal would do little to ensure a less politicized Court, as the Trump administration has already emphasized nominating younger justices, and Democratic presidents are likely to follow suit.
However, that approach could address a valid criticism that our justices—who represent only two religions and (until now, given that Justice Barrett has been confirmed) a few Ivy League schools—are unrepresentative of the American people. Justices are tasked with determining, among other things, whether rights are fundamental and whether methods of punishment fit our “evolving standards of decency.” Those responsibilities mean that justices must be attuned to the sensibilities of the U.S. population as a whole, rather than a narrower cultural or socioeconomic subset of the American people. Similarly, the 2010 Census documented that no less than 87% of Americans were under the age of 65 at the beginning of the last decade, and experts believe that future scientific and technological change can be expected to result in profound societal shifts. Yet, an elderly court might lack a fresh perspective on issues such as the intersection of privacy and technology, or the dynamics of modern family relationships. While liberals were demoralized by President Trump’s three Supreme Court selections, one wonders whether Justice Gorsuch’s geographical diversity influenced his decisions to expand rights to LGBT employees and to recognize Native American sovereignty.
Additionally, it is fair to inquire as to whether justices are capable of performing the demanding duties of the job after a certain age. The Supreme Court is an incredibly secretive institution and the public receives very little information about internal deliberations, let alone the health of the justices! Justices are understandably hesitant about who their replacements might be. Thus in choosing their retirement dates, they are incentivized to wait out opposite-party presidencies.
Therefore, while a mandatory retirement age would not provide the benefits sought in terms of reducing the impact of partisan considerations in selecting justices, it could provide more diversity of thought—apart from the liberal versus conservative dichotomy—on the Court and ensure that justices refrain from strategically clinging to power.
Conclusion
The easiest way to reform the Court is to increase the number of its justices, as that approach would most easily withstand a constitutional challenge. However, that change would only shift the ideological balance in the short term. The best solution would be to impose a term limit, similar to the Calabresi-Lindgren model, because presidents, while still choosing ideological counterparts, would be incentivized to select the best candidates regardless of age. If done the way the authors propose, the Court could have predictable vacancies. Such a proposal would align the organization of the Supreme Court with the high court structures of other liberal democracies and the U.S. state court systems, and would stand a chance at surviving a constitutional challenge.