In response to the confirmation yesterday of Amy Coney Barrett, the NY Times published a multi-part editorial today titled “How to fix the Supreme Court.” The paper offers seven separate editorials by different authors only one of which recommends leaving the courts as they are. The other six pieces recommend different fixes from packing the Supreme Court to creating a term limits for Justices. Here’s a sample of each recommended fix:
Create a New Court
The way to save the court is to create another one.
The United States should join scores of other nations, including Germany and France, and create a specialized court to decide constitutional questions…
This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.
The idea here is to simply bypass the existing Supreme Court in favor of one appointed by the next president. Democrats looking at the national polls right now probably think that’s a great idea. The “bipartisan commission” would select a slate of judges but the president would actually select from that slate, meaning he or she wouldn’t have to pick any but the most partisan judges. This seems to make the new court more directly partisan than the existing one which at least has justices who have been around a while.
Give Justices Term Limits
Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law. It may even change the way the justices view themselves.
That is why we need to permanently reform the broken process for selecting Supreme Court justices. My proposal is a constitutional amendment that would create a single 18-year term for each of them.
No other major democracy in the world gives the justices on its highest court life tenure, and nor do 49 of the 50 states.
I think the author has a point here. Allowing justices to pick when they retire has obviously become political. As we’ve all heard, Justice Ginsburg’s dying wish was to not be replaced until after the election. She clearly hoped a Democrat would win and she could retire assured of a like-minded successor. That plan didn’t work out which is ultimately why the Times is publishing this entire piece. Term limits would put an end to that sort of thing. Of course it’s not really fair that Democrats only want to do this now that conservatives have a 6-3 majority on the Court. How about we start this next time Democrats hold a majority?
Don’t Let the Court Choose It’s Cases
The certiorari process means that, unlike lower courts that may merely “call balls and strikes,” in Justice Roberts’s memorable framing, the Supreme Court controls who’s at bat. Through this power, justices can promote their own agendas by choosing cases that operate as tools to bend the law to their preferences.
Taking away this power — to determine the issues it decides and on what terms it decides them — is America’s best option to curb the court’s activism, and restore its legitimacy…
The court couldn’t always do this. For the first 100-odd years of the Republic, the court had to review every case that litigants appealed. Only with the Judiciary Act of 1925 did the court begin to exercise vast discretion over its docket.
This author has harsh words for the idea of court packing.
(Threaten) to Pack the Courts
This piece discusses an approach to Supreme Court rulings which attempts to determine which side will suffer the least harm based on the outcome. The author argues this is a good, moderate approach and explains the Court’s current popularity. He says threatening to pack the Courts can ensure this trend continues:
Progressives should play the long game. By threatening to pack the court, they can put much-needed pressure on the conservative justices to moderate their views and to consider which side will suffer the least harm — and thus earn the public’s confidence.
If they don’t, there will be time to turn to other options.
Pack the Courts
Liberals say that if Joe Biden wins the election, Democrats should answer by adding justices to the Supreme Court. Republicans respond with faux outrage that this would politicize the judiciary. But they have already politicized the judiciary. The question is whether only one side should play that game. Besides, not only is enlarging the Supreme Court legal, its size has changed seven times over its history.
Adding judges would be a political response to a political act. But the extremes to which Republicans have been willing to go leave the Democrats no other choice. Not for revenge or because turnabout is fair play, but as the only way back to a less politicized process.
Not for revenge. Oh no, dear reader, never that. You have to appreciate Democrats’ conviction. Even when they are contemplating seizing power in bold new ways they still give themselves credit for pure intentions. The pitch here is that the Court is already politicized so why not politicize it more to depoliticize the court over time. Genius. The saddest thing about this piece is that I think the author actually believes it.
Expand the Lower Courts
The vast majority of cases never reach the Supreme Court. They are resolved in the federal trial courts and federal courts of appeals: The appeals courts alone handle more than 50,000 cases each year. Since the Supreme Court hears arguments in fewer than 100 cases each year, almost all of these lower-court decisions will be final. Any court reform — indeed, any democracy reform — requires more lower federal courts…
A larger roster of lower federal courts would ensure that more cases are resolved by judges who better reflect the democratic values and diversity of our country. It would also decrease the likelihood of the increasingly conservative lower federal courts significantly altering the law without the kind of public scrutiny that accompanies Supreme Court decisions.
There may be some principle here that people could agree with across party lines, i.e. there are a lot more people in the country than there used to be so having more federal courts makes sense. However, the author soon makes clear that the goal is to dilute the impact of conservative court appointees. Again, would the author make the same recommendation if the parties were reversed. My impression is probably not.
Keep the Courts the Same
The final and the most inherently conservative take:
For over 150 years, the Supreme Court has consisted of nine justices, a number set by Congress. This norm of nine is supported by another that is more fundamental: the norm against changing the number of justices solely to achieve a partisan or ideological advantage. Violating this norm is called “court packing.”…
Once the norm against court packing is gone, there is no limit on how often it will be used by each party when it controls both Congress and the presidency. If Democrats expand the number of justices in 2021, Republicans will do the same when they have the power.
There’s also a response to the term limits idea:
From both the left and the right, we hear calls for “term limits” for justices. This should require a constitutional amendment, but some claim it can be accomplished legislatively by moving older justices to a form of “senior status” or by some other device…
Without the norm of lifetime service, justices are more likely to rule in ways that will maximize their future employment prospects. Once again, this will decrease their independence and increase the political nature of their rulings, undermining the perceived legitimacy of the court.
The piece concludes with a line which could really be a conservative motto: “the reality is that things can quickly get much, much worse.” If 2020 has taught us anything at all, that should be it.
You can read the full essays for yourself but in the end the real impact of this is that the NY Times is stating as loudly as possible that the Court is broken and therefore some fix is needed. The only real question is which one. I don’t think anyone believes for a second the Times would be publishing this editorial if Democrats held a 6-3 majority on the Supreme Court. Once again, Democrats are facing the results of losing an election and once again they declare it illegitimate and want to change the rules. All of this is an exercise in pure partisanship and should be treated as such.
Update: Guy Benson with the thought experiment which should be asked of everyone currently pushing to fix the Supreme Court: If Trump wins do you still believe this?
Thought experiment: If Trump won re-election & Republicans secured Congressional majorities, would those pushing court-packing maintain their current demands? The answer is obvious & tells you everything you need to know about calls for “reform.” pic.twitter.com/ZP8gVHsrky
— Guy Benson (@guypbenson) October 27, 2020