That may actually be the best thing that can be said about Pete Buttigieg’s plans for the Supreme Court. Jamelle Bouie doesn’t mean it as a compliment, of course. First, let’s recall what Mayor Pete has proposed, and why NBC News notes he’s making it central to his 2020 presidential campaign:
Pete Buttigieg, the mayor of South Bend, Indiana, has talked about his plan to overhaul the high court since his first days as a candidate. In short, it calls for expanding the number of justices from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10.
Although other Democratic candidates have called for Supreme Court reform — Beto O’Rourke has even called the same 15-justice plan “an idea we should explore” — no other candidate has made it central to his or her rationale for running and proposed presidential agenda. Buttigieg has said structural democratic reform would be his top priority, vowing to launch a commission on depoliticizing the Supreme Court on his first day as president.
Buttigieg hasn’t ruled out other possibilities for court reform, but says the 15-justice plan is “the one that I find most intriguing.” Supreme Court experts, though, have raised concerns about whether the proposal is constitutional, as well as whether it could backfire by reinforcing the perception that there are Republican and Democratic justices.
So … Buttigieg wants to “depoliticize” the Supreme Court by dividing it up between the partisans? Bouie can’t wrap his head around that one, and for good reason. Because that argument is so contradictory, Bouie guesses that Buttigieg’s true motive is ideological. He’s almost certainly correct, but Buttigieg isn’t copping to that, at least not in public.
If that’s what Buttigieg has in mind, Bouie argues, this won’t do it. What Bouie wants is a completely overhauled court that will impose a progressive agenda and negate earlier rulings that favored conservatives:
Buttigieg hasn’t just misjudged the institution; he has missed the actual threat facing progressives and other left-leaning reformers. It’s not the high-stakes, overheated spectacle of the nomination process but the prospect of government by justices that threatens to undermine both the court and our democracy. After decades of railing against “activist judges,” Republicans are poised to reverse the hard-won gains of activists and ordinary people through judicial fiat. …
Their collective hostility to liberal governance (and in Thomas’s case, the entire New Deal order) virtually guarantees that there will be a series of constitutional confrontations if and when Democrats have a chance to shape and revitalize the social safety net, just as there was in the 1930s. And that’s to say nothing of the lower courts, stacked with dozens of conservative judges under Trump. A president supported by a minority of voters may shackle future majorities for decades to come.
Will this stronghold of conservative jurists stay its hand as Democrats embark on their plans and agenda items? Or will these judges strike back, curtailing the policies of the Democratic majority and trimming the sails of its ambition, forcing the public conform to their particular understanding of the Constitution despite equally valid alternatives? Will Democrats, in other words, relive the experience of Franklin Roosevelt’s first term, stymied by judges and justices whose vision of “liberty” rejects the right of the people to shape their collective economic lives?
This pushback is more than a bit mind-boggling, too. Bouie complains of judicial fiat and then hails its origins, the “living Constitution” argument. Starting with Woodrow Wilson’s vision of the Supreme Court as a “constitutional convention in continuing session,” the courts began to make policy by “interpreting” rather than narrowly applying the actual text of the Constitution. FDR bullied the courts into moving further down that path by threatening to pack the Supreme Court, resulting in a series of decisions that greatly expanded federal power without any actual amendment process of the Constitution. Wickard v Filburn is perhaps just the most well-known of these, a case in which the court ruled that any agriculture implicated interstate commerce regardless of whether it ever crossed a state line at all.
In short, Bouie’s afraid that conservatives will use judicial activism to undo decades of the judicial activism he likes. That threat is almost certainly overstated; there are too many institutionalists on the court and too much respect for stare decisis. Still, Bouie’s correct that Buttigieg’s proposal doesn’t do anything to advance a progressive agenda past the conservatives already in the judiciary. Where, however, does that mission get assigned to the judiciary? That is a legislative process, which is Congress’ jurisdiction and responsibility. Under the Constitution, anyway.
In my column for The Week, I argue that the last several decades of “living Constitution” activism is precisely the cause of the poisonous politicization of the judiciary. In that case, Buttigieg’s proposal is … just as ridiculous:
The worst aspect of Buttigieg’s plan is the idea that justices should appoint their own colleagues on the court. The federal judiciary enjoys lifetime appointments to keep the jurists from bending to political pressures, but at least every judge at all levels has to be appointed and confirmed by elected officials. Justices appointing and confirming justices will at best create a star-chamber effect. In practice, the 10 partisan justices will end up getting selected on a new litmus test – their willingness to appoint politically minded and partisan judges from the lower courts. And since Buttigieg envisions either unanimity or a supermajority among the other 10 for confirming those jurists, the likeliest result will be continuing vacancies that stretch out for years.
In comparison, the more straightforward court-packing plans do less damage but still avoid the real problem. Partisanship in the judiciary will not get resolved by changing the number of seats on the Supreme Court. It will only make partisan battles more constant, and will incentivize each succeeding administration to expand the Supreme Court further. Eventually, that will result in a quasi-House of Lords and completely destabilize the judicial process.
None of this addresses the actual issue that has made the Supreme Court so polarizing. Starting decades ago, well before Roe, the court adopted a “living Constitution” approach that encroaches on legislative and executive jurisdiction. Woodrow Wilson first pushed this vision of courts that would bypass Congress and expand federal power, and it caught fire during Franklin Delano Roosevelt’s New Deal. That has corroded the court’s ability to act as an impartial arbiter on behalf of the Constitution, transforming it instead into Wilson’s vision of a Supreme Court as a “constitutional convention in continuous session” without any buy-in from the people being governed by its rulings. It is that power that makes the Supreme Court a powerful political prize, and it has transformed presidential and senatorial elections into near-proxies to shape this super-legislature.
Buttigieg’s “reform” would complete the Supreme Court’s usurpation of the legislature. The best reform would be to find jurists willing to dispense with the Wilsonian “living Constitution” approach and return the judiciary to its proper relationship between the legislative and executive branches. But that’s a change neither party seems particularly interested in.
If we truly want to fix the politicization of the judiciary, we should return it to its original purpose. Those who want to instill new rights in the Constitution should do so through the amending mechanisms it provides. If enough consensus to make a change cannot be found among the people it governs, that’s not the fault of the Constitution, nor of those who would apply it in its textual form. The alternative is rule by star chamber, and we’re getting closer to that in Buttigieg’s self-perpetuating Supreme Court model.