Partisan Proposals Could Irreversibly Damage the Legitimacy of the Supreme Court
By Raymond McKoski – Assistant Professor of Law, University of of Illinois, Chicago
In April, President Biden established the Presidential Commission on the Supreme Court of the United States. The impetus for the Commission was a campaign promise by then-candidate Biden. Reluctant to announce whether he supported adding seats to the Supreme Court, Biden promised, if elected, to establish a Commission to study changes to the Supreme Court because the Court was “getting out of whack.”
At the Commission’s first meeting on May 19, co-chair Cristina Rodríguez reminded the commissioners of their charge — to review the role and operation of the Court, “including an appraisal of the merits and legality of particular reform proposals.” The Commission welcomes public comments, and here are mine.
Make the Lay Public Part of the Process
Out of the 36 commissioners, 35 are lawyers. The only non-lawyer, a professor at Princeton University, has a Ph.D. in political science and has taught at law schools. The lay public has no seat on the Commission. This unfortunate omission deprives the Commission of the perspectives and insights of persons not embedded in the legal system. Public hearings dominated by lawyers and individuals constrained by partisan agendas will not cure the deficiency. Because “[t]he ability of courts to fulfill their mission and perform their functions is based on the public’s trust and confidence in the judiciary,” the Commission should conduct focus groups to gather the views of ordinary, non-lawyers on reform proposals.
Increasing the Number of Justices
Although the Presidential Commission is not tasked with studying “court-packing,” adding seats to the Court will top its agenda. Court-packing may have a tough row to hoe, however, since notables like Justice Stephen Breyer and Bob Bauer, co-chair of the Commission, have spoken against the idea.
The advantage to adding justices to the Supreme Court is that Congress has the power to do it. It has been done before and there is no constitutional impediment to doing it again. If the Senate can defeat filibuster attempts and the House and Senate pass a bill adding seats, the President could nominate new justices immediately and confirmation proceedings could speed through the Senate. The obvious flaw in the proposal is its unabashedly and blatantly partisan purpose to replace the Republican stamp on the Court with the Democratic logo. Adding justices has nothing to do with correcting defects in the Court. It is simply playing “hardball” and delivering “payback” for real or imagined abuses by President Trump and the Republicans. Proponents recognize that adding justices might create a “risk to [the] legitimacy” of the Court but are willing to take the risk. Because a mountain of literature on court-packing already exists and because the plan is irrefutably a partisan move, the Presidential Commission should devote minimal time and effort to this proposal.
Also on the Commission’s agenda is a proposal to impose term limits on justices. Usually, proponents suggest 18-year terms so that the President would select two new justices every four years. Many conservatives and progressives back term limits. More than 60% of the public support the idea. The proposal’s appeal is that some Presidents, like Donald Trump, get to choose three justices and others like President Jimmy Carter have no vacancies to fill. But unequal opportunity to appoint justices does not necessarily constitute unfairness or a flaw in the selection process. If President Carter had been popular enough to win a second term, he would have filled three Court vacancies. That would have been one more appointment than Presidents William J. Clinton, George W. Bush, and Barack Obama made in their two terms in office.
However, the proposal could erode a core pillar of the Court’s institutional strength. Using a computer simulation, Suzanna Sherry and Christopher Sundby predicted the possible impact on abortion rights if term limits were in effect in 1973 when the Court decided Roe v. Wade. Sherry and Sundby argue that rotating justices every 18 years likely would have resulted in the Court overruling Roe v. Wade in 1987, reinstating the holding in 2009, and overruling Roe again in 2017. Such ricocheting decisions could deliver a fatal blow to the backbone of the Court — doctrinal stability. Term limits would have prevented Justice Ruth Bader Ginsburg from participating in the landmark case of Obergefell v. Hodges, a five to four decision finding a constitutional right of same-sex couples to marry. And while Justice Ginsburg’s absence may not have changed the decision, no Justice would have “eviscerated” the opponents of same-sex marriage during oral argument in the same inimitable manner as “Notorious RBG.” Finally, the Presidential Commission must address whether requiring the country to suffer through bitter, partisan Senate confirmation bloodbaths every two years would improve or damage public confidence in the judiciary. Focus groups of non-lawyers could shed valuable light on the viability of term limits proposals.
The Anti-Majoritarian Argument
Many proponents of Court reform justify their proposals on the claim that the Court has become anti-majoritarian. The anti-majoritarian argument rests on the fact that President Trump selected three Supreme Court justices even though he lost the popular vote in 2016 by nearly 3 million votes. According to reform proponents, the undemocratic nature of the Electoral College is exacerbated by the Senate confirmation process. They point out that the Senators voting to confirm Justice Amy Coney Barrett represented 13 million fewer people than the Senators who voted against her. But even assuming that the constitutional provisions establishing the Electoral College and the two-senators-per-state rule are unwise, those structural deficiencies are owned by the executive and legislative branches. They should not be addressed indirectly by a commission on the Supreme Court, but addressed directly by Presidential Commissions to study structural deficiencies in the operation of the executive and legislative branches.
Consider Some Less Advertised Proposals
The Commission should consider some less advertised and less studied reforms. Reforming the Senate confirmation process from its current embarrassing spectacle of partisan viciousness — designed only to polarize and politicize judicial selections — would come within the Commission’s charge. Whether Supreme Court justices, like other federal judges, should be governed by a judicial ethics code has been suggested but not studied. The Commission could assess the advantages and disadvantages of an ethics code for the justices and, if the pros outweigh the cons, suggest that the American Bar Association or other group begin work on a proposed Supreme Court code.
Hopefully, the Presidential Commission will obtain views and comments from non-lawyer members of the general public. Optimistically speaking, the Commission will not waste time on purely partisan proposals or proposals that might damage rather than promote confidence in the Court. Maybe the collective wisdom and insights of the commissioners will improve our judiciary. And if the Commission is successful, perhaps similar commissions to study the structural or operational deficiencies of the executive and legislative branches will follow.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.
Raymond J. McKoski
Since retiring from the Illinois judiciary, Ray has served as an adjunct professor at the University of Illinois Chicago Law School teaching courses in appellate advocacy and the jury process. He has authored fourteen law review articles on legal and judicial ethics and has lectured for numerous state and national bar associations, judicial organizations, judicial colleges, and law school symposia. Ray is on the editorial board of the British Journal of American Legal Studies. He graduated summa cum laude from DePaul University College of Law. His book, Judges in Street Clothes: Acting Ethically Off-the-Bench, examines the ethical restrictions on a judge’s off-bench activities.