Our Proposal to Reform the Supreme Court

by David Bernell and Ambassador Thomas Graham (Retired)

The judicial branch of the United States, and the Supreme Court in particular, has become increasingly politicized and polarized, just like every other part of government and society in this country. And it’s only gotten worse in recent years. Polling reveals that the Court’s approval and legitimacy are near historic lows, with public approval at 42 percent, down from 66 percent in 2020. In addition, news stories about the partisan speeches and activities of Justices Alito and Thomas (and Thomas’ wife) have become more prevalent and notable in recent years. Justice Thomas has also been the recipient of millions of dollars in undisclosed gifts and travel from Republican donors, some of whose interests have come before the Court.

It’s not only a condition on the political right. Justice Ginsberg weighed in on the election in 2016 and called Donald Trump a “faker,” saying she couldn’t imagine what the country might be like with him as president. The partisan divide in the Court, along with what has been called “the growing ideological consciousness among the Justices themselves” all diminishes the independence and the legitimacy of the Supreme Court and the judiciary.

And of course, many of the Court’s decisions – such as the ruling overturning Roe v. Wade, and the series of decisions over the past several years that have ended the protections of the Voting Rights Act, including the ruling on April 29 that largely nullified yet another part of the landmark law that sought to end racist Jim Crow restrictions on black voters – all put the Court in greater disrepute. One poll found that “62 percent of respondents believed that the Supreme Court’s decisions are driven by politics rather than the U.S. Constitution and the law.”

The people and the democracy of the United States would be well-served by changing this state of affairs. So instead of delving further into what’s wrong with the current membership or rulings of the Supreme Court, we want to suggest a way to improve the institution and diminish the ongoing contentiousness surrounding it.

Fixing a Broken System

Every position, and every vacancy on the Court, has become increasingly consequential in American politics and in people’s lives. When it comes time to fill an open position on the Court, or even consider a possible retirement when one party or the other controls the White House and the Senate, the issue has come to be considered a matter of utmost importance for many people and interest groups. This makes the fights to fill open seats angrier and more venomous. And this further fuels the divisiveness of American politics, while weakening the legitimacy of the Court.

Lifetime appointment into one of only nine positions can have substantial and long-lasting effects, influencing public policy for a generation or more. It is time to diminish some of these consequences, making them smaller and less likely. The way to do this is to make the Supreme Court bigger and the length of service shorter. This will reduce the power of each vote, and shorten the length of time that a single individual can hold great sway over public policy.

Our proposal is to expand the Supreme Court by requiring the president to nominate a new justice every year. In the absence of a Senate vote to confirm or deny the nominee within 60 days, the nominee shall be considered approved (this timeline would eliminate the problem Senator Mitch McConnell created by refusing to allow a vote on President Obama’s nomination of Merrick Garland in 2016). The size of the Supreme Court will fluctuate, but this doesn’t matter. There is no “perfect” size for the court. More importantly, there is a Constitutional issue. Federal judges are entitled to lifetime appointments, as stated in the Constitution: “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” This means they can only be removed by means of impeachment.

Here’s the catch: Only the 15 justices appointed to the bench most recently would decide cases on the Court’s regular docket. Not all members of the Court would decide every case. This is similar to how cases are allocated in federal appeals courts. While the number of judges on each of the country’s thirteen appellate courts varies, cases are typically decided by panels of three judges (though in these cases the panel members are selected randomly). Supreme Court cases of significant national importance should involve more than a small number of people deciding them, but the principle that only a portion of the justices would decide each case is consistent with the appellate courts.

All the Supreme Court justices would remain on the bench and hear cases as long as they like, with their salaries, benefits and seniority. Those justices beyond the 15 who are deciding cases could then perform other duties of federal judges if they so choose. They could fill in when a recusal or illness or some other absence renders a member of the Court unable to decide a case. They could also help to administer the judicial branch, which is an important role for federal judges, including the Chief and Associate justices. They develop rules of evidence and procedural rules, set policy for federal courts, and determine budgets, staffing, and case management. Duties that are specifically carried out by the Chief Justice could be shared with others, such as appointing judges to serve on specialized courts and administrative judicial committees.

This system is practical, while offering several improvements over our current system. It provides ongoing rotation on the Court with respect to who decides cases. It would reduce the stakes for any single appointment, diminishing the importance and influence of any one individual on the Court, while producing in effect a de facto term limit to justices. It also avoids the necessity of a Constitutional amendment, which would be all but impossible to achieve. It only requires Congress to pass a law. And it could make the politics of the Supreme Court less divisive. What’s more, it’s fair to both political parties, which would have an equal chance to appoint justices. It would allow the Court to better reflect electoral outcomes and stay more consistently in sync with public opinion. And every president would have an opportunity to shape the Court without waiting for chance occurrences to open up a seat, while ending the practice whereby justices strategically choose the timing of their retirement so they can help ensure the potential pool of their successors.

What About Just Packing the Court?

The Democrats may at some point soon gain control of the White House and both houses of Congress (and this could happen in January of 2029). Then maybe they could expand Supreme Court and fill it with justices they want (this assumes that the Senate filibuster wouldn’t be available to kill the plan). Then the Republicans would be likely do the same to pack the Court in their favor whenever they gained similar control of the government. The political vitriol that would accompany this process over many years would not be great for the country. Though with respect to solving some of the judicial branch problems explained here, court packing is not the worst outcome. This is because weakening the power of each vote and making vacancies arise more often is largely a good thing. There’s no inherent reason that a Court with 19 members, or 27 or 52 is flawed, or worse than a court with nine members. A larger court could certainly correct much of what’s wrong with our current arrangement. And at some point, this strategy of continual expansion would yield such diminishing returns that it wouldn’t be politically worth it for either party to pursue.

That said, alternating battles to pack the Court are not better than an agreement that gives something to both parties. Due to the fact that there is a conservative majority on the Court, and there is likely to remain such a majority for a while, the Republicans have little incentive to agree to any kind of a deal with the Democrats to reform the Court. So this is all theoretical (at least for now). But if there ever is an opportunity for reform, a fair and orderly change to the Supreme Court is a better alternative than having one party push through a Court expansion that offers nothing to the other side. And it’s definitely better than creating a situation in which the battle over the composition of the Supreme Court extends for years on end, taking time and attention away from other issues this county needs to address. Court packing may offer satisfaction to one party or another, but any gains achieved would be temporary, and everyone would have to gear up every so often to refight the same battle. That’s no way to strengthen our democracy.

We are under no illusions that this proposal for Supreme Court reform is anything more than chatter, conjecture, or even fantasy, at this time. However, we also know that for change to come, the first step is to imagine and articulate that vision of change. In this way, we are optimistic that change for the better will come. We may have no proof, but we also have no doubts.