Both the Federal the Supreme Court are in need of reform. Not today, not tomorrow, but yesterday. If the upcoming gun and abortion cases coming in front of a heavily conservatively stacked Supreme Court (which is ideologically counter to the country as a whole) aren’t enough to get you to see the truth of this, then hopefully the knowledge that one of (if not the) worst presidents the country has ever seen picked the last three Supreme Court Justices will do it.
It’s not just the turmoil and existential crisis the Trump Administration dragged us through (and we’re still deep in the mud), it’s that he was aided and abetted by a whole gaggle of cowardly (perhaps I’m wrong here and they aren’t cowardly, but very enthusiastic) Republicans, who not only stood by while Trump supporters ambushed and invaded the Capitol on the Constitutionally proscribed day that the Electoral College results were to be certified, but they to this day are still trying to cover for Trump and his insurrectionist supporters. It’s clear that the Trump Republican Party wants nothing but to tear down the democratic fabric of our Nation and lives all in a bid to wind the clock back and keep power at all costs, even when they continuously lose popular votes across the nation, from towns to counties to State to National, up and down ticket. If it weren’t for the past mistakes of Democrats and a generally unenthused electorate the extreme gerrymandering that has entrenched Republican minority rule would never have happened.
Now, a rant and screed against the conspiracy loving, White Supremacist supporting heart of the modern Republican Party will have to wait for another day and another post. This is all about the American Judicial Branch and the reforms I believe it needs. Even implementing just one would, in my mind, go a long way toward fixing a branch of government that has historically proven itself, over and over, to be behind the times often enough and to such a degree as to cause actual damage to the country. Not that the Supreme Court doesn’t get it right and get it right in big ways (school integration, same-sex marriage, etc.), but it can and has gotten it wrong in equally horrific ways (Dred Scott) and, contrary to what we would all like to believe, has been partisan in its decisions quite often.
Now, back to our regularly scheduled I Know Better than Constitutional and Legal Scholars post. Here are my three proposals, in no particular order, and they should not be taken as mutually exclusive.
First, the Supreme Court should be expanded to 13 or 15 Justices. Here I know for certain that the Constitution places no limits on the Court’s size aside from what Congress deems is right. Expanding the Supreme Court, today, would give the current Administration the ability to add anywhere from 4 to 6 new Justices, ideally tilting the court to better match the political and social ideology of the country.
Now, this won’t necessarily magically fix an out of sync Court forever. And, the counter argument, which I get, is that while this would benefit progressive causes today (we assume) who knows what 30 or 50 years down the road will bring in the Court’s makeup. To this I say keep reading for my second proposal, which combined with an expanded Court and applied to all Federal judicial appointments should go a long way toward keeping things relatively well balanced.
Before I get to my second proposal, let’s look at the counter argument: shrink the Supreme Court down to 5 or 7 Justices taking a Last In First Out approach to reshaping the Court. I think this is much more controversial and unworkable simply because, in essence, you’re punishing the newest members of the Court, which is inherently unfair, the perception of which would be that shrinking the court under a Democratic Administration and Congress is nothing but spiteful partisan vindictiveness. We have to remember that these Justices, at the end of the day and all our partisan arguments, are innocent in their appointment. The president who nominated them, the process and the Congress that consented to their appointment may have been corrupt, but they themselves didn’t sneak in and plant themselves on the bench. They aren’t stowaways, and they shouldn’t be punished for the constitutional process that got them where they are. Besides, how many Justices over the years have been vetted, nominated and confirmed because of their perceived ideological leanings only to issue decisions that countered those same perceived ideological and political leanings, benefiting the other side of the political and social spectrum?
Second, term limits. While the Constitution says nothing about term limits for Federal or Supreme Court Justices it also doesn’t prohibit Congress from enacting such limits. I suggest a limit of 18 years, essentially three Senate terms, with the caveat that it would be applied first to the Justices who’ve served the longest. The clock would start from the day the Justice was confirmed. While this will inevitably favor one political party over the other from time to time, I don’t see that it would be a permanent unfair advantage; something the Republican Party seems to have been enjoying for quite some time.
I think an adjunct to this would be for Congress to codify the McConnell Rule for all situations. No President can fill an empty Judicial seat, Supreme Court or otherwise, in the calendar election year of their current term. This will help avoid the political and clearly partisan mess, even if Constitutionally allowed, that McConnell created first with Merrick Garland and more recently with Amy Coney Barrett. Of course, no proposal I can think of will ever get the stain of partisanship out of the judicial nomination and confirmation process, but we can certainly wash away the most egregious instances.
Third, open Federal seats should only be filled to the same percentage of the federal government the President’s party controls. This would best reflect the current National political sentiment while symbolically giving the minority some say in the makeup of the Judiciary. So, for example under Trump, after the mid-terms, he should have only had the opportunity to fill 2/3 of the open Federal Court seats. Today, under the current administration, President Biden should have the opportunity to fill 100% of the open Federal Court seats. Once the mid-terms roll around that may change.
While this third proposal appears to put a lot of weight on the first two years of a Presidency to fill vacant court seats, especially when the President’s party controls both chambers of Congress, I don’t believe that it really changes much. Judicial nominations and confirmations have become increasingly partisan and so it behooves a sitting President to get as many judges nominated and confirmed in the first two years of their term anyway. Codifying this into law would give everyone a much more concrete view of the path forward after an election. Combine this with codifying The McConnell Rule and I believe this will help stabilize the law, specifically the court’s ideological interpretation of the law, during the calendar election year of a presidential term. If the country votes for a wholesale change in direction the outgoing administration can’t impose it’s now outdated and unwanted vision upon the country by seating judges who are ideologically opposed to the direction of the country. If the current administration gets voted back in for a second term, well, they have a lot of time to build their judicial nominee list prior to retaking the Oath of Office on January 20th.
I don’t know if any of my proposals are workable, let alone realistic, though I am pretty certain they are all Constitutional. What I do know is that Trump, McConnell and Gang, through fortuitous events that were completely foreseeable and avoidable by the Democrats, have placed Supreme Court Justices and Federal Judges whose interpretations and ideological leanings are completely counter to the majority sentiment of the country, as well as past courts and the expansion of civil liberties. While I view the courts as a Great Stabilizer and foundation for the Rule of Law, what so many have pointed out, and I can’t deny, is that judicial appointments have become increasingly partisan and weaponized. This does no one any good in any time frame. With Roe v. Wade in the line of fire and the prospect of a Supreme Court deeming gun control as unconstitutional, even to some small degree, we have a court primed and ready to bring about unwanted change and societal unrest.
The driving ideal of this country is that individual rights, tempered by the good of the many, are paramount. By restricting a woman’s right to choose and a State’s, county’s, or city’s ability to enact reasonable safe guards around gun ownership the Supreme Court is heading toward restricting an individual’s right to self-determination while simultaneously making it harder for governments of all sizes to secure domestic tranquility. Elections do have consequences, and the consequences of the 2016 election combined with past State level elections, which have led to a majority of States with Republican control, have created a judicial and legal environment that is setting the nation down a path of renewed social convulsions, upheaval, unrest and civil strife, more than I believe we’ve seen in the past. Reforming the federal courts, including the Supreme Court, at the very least through expansion and term limits will help to alleviate the deep partisan fissures we currently endure. We, as a nation, either are able to get through this intact, or I fear, will find ourselves permanently broken and diminished.