The death of Supreme Court Justice Ruth Bader Ginsburg, who lost her battle with pancreatic cancer at age 87 on Friday, marks the beginning of what will surely be many debates about the future of America’s top judicial body. Top among them will be who will replace Ginsburg on the court, and whether President Trump should be allowed to nominate a replacement just weeks ahead of the November election. However, regardless of who fills Ginsburg’s seat, larger questions about the role of the Supreme Court have loomed large, including whether or not additional justices should be added.
In March, when the Supreme Court postponed arguments due to the outbreak of the coronavirus — the first time they’d disrupted proceedings since the Spanish flu epidemic of 1918 — The Inquirer turned to two experts to debate: Should the size of the court itself be altered to change the ideological balance of the justices?
YES: No way to rebalance the Supreme Court without expanding it.
By Leah Greenberg and Ezra Levin
Republicans have appointed 15 out of the last 19 Supreme Court justices. This just does not pass the smell test for a legitimate democracy.
We face a conundrum: We absolutely have to address the right-wing imbalance of the current court right now. But we also have to do it in a way that makes the court less openly partisan over the longer term. That’s a tricky line to walk.
There’s no way to rebalance the court without expanding it. Neil Gorsuch isn’t going to politely give his seat back. Senate Majority Leader Mitch McConnell isn’t going to start seeking broad bipartisan support for justices. It’d be nice if we could hold Brett Kavanaugh and Clarence Thomas accountable for the allegations of sexual misconduct and potential perjury, but removing a Supreme Court justice requires two-thirds of the Senate.
The only solution to unpacking the Supreme Court is to add new justices. The court’s size isn’t written into the Constitution. It can change and has been changed throughout American history. A simple act of Congress signed by the president can expand the court.
But remember, we have two goals: unpack the current court, and depoliticize it for the future. That means we need to think about ways of adding justices that make the court less political over time.
One proposal on the table is to commit to automatic expansions of the court going forward. For instance, in 2021, the Congress and the president could pass legislation creating a new rule: every president gets to appoint two additional justices (one every two years). If there’s a Democrat, they get to nominate two justices; if there’s a Republican, they get to nominate two justices — regardless of vacancies. This would make appointments less random: the path of our society shouldn’t rest on the health or illness of a small number of very old people. And it would allow us to both unpack the court and create a foundation for a more functional, consistent, and less partisan process going forward.
The court’s size isn’t written into the Constitution. It can change and has been changed throughout American history.
Congress could also impose term limits for Supreme Court justices. In 1919, Congress passed a law allowing federal judges to take “senior status,” which allows them to remain official judges but no longer vote or author opinions. This is sort of like auditing a college class: You’re still a student, but you don’t take the tests or get a grade. That 100-year-old law creating senior status excluded Supreme Court justices, but it was expanded to the highest court in 1937. A new Congress and president could revise the legislation further, implementing mandatory senior status for Supreme Court justices after an 18-year term. The justices could then opt to stay in quasi-retirement or rotate into serving on lower courts.
These options aren’t mutually exclusive. Expanding the court, committing to automatic expansion going forward, and instituting term limits is a reasonable combined strategy. Our point here is not to choose the one and only path, but rather to point national leaders, and other progressive advocates, in the right direction.
For progressive reforms to survive, we must unpack the court. For the Supreme Court to remain legitimate, we must depoliticize it. Any effective reform must tackle both goals.
Leah Greenberg and Ezra Levin are the authors of “We Are Indivisible: A Blueprint for Democracy After Trump,” from which this piece has been adapted.
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NO: Supreme Court should not bend to the will of any political majority.
By Michael H. McGinley
There is no good reason to change the size of the Supreme Court, and very good reasons not to do so. Although the justices and their staff work grueling hours, there is no legitimate argument that nine justices are incapable of handling the Supreme Court’s caseload. Thus, the only conceivable motivation to adjust the court’s composition would be the desire to influence outcomes in specific cases. But that would threaten the rule of law and judicial independence.
The rule of law is the lifeblood of our republic. Trust in the American legal system depends on the public’s belief that federal judges, including Supreme Court justices, decide cases without regard to partisan pressure or personal preferences. The Founders knew that, and the Constitution thus equips Supreme Court justices with protections — including life tenure and the assurance that their pay cannot be diminished during service on the court — to insulate them from political attacks.
Having clerked at the Supreme Court and litigated many cases before the justices, I can say from personal experience that the rule of law is alive and well within the court’s hallowed halls. All nine justices, regardless of which president appointed them, do their level best to decide every case based on the law and the facts, without regard to partisan politics.
While the press tends to focus on the small handful of 5-4 decisions in high-profile cases, the justices more often find themselves in broad agreement on the most difficult legal issues of the day. And when there are disagreements, they are based on legitimate and reasonable differences of opinion about the law, not the justices’ personal policy preferences.
The justices were granted judicial independence so that they would be free to follow the law where it leads, whether or not the outcome might upset those with political clout.
Any effort to influence the court’s decisions — from either end of the political spectrum — by threatening to “pack” it with new justices would only turn the court into a political football. The suggestion alone signals to the American public that those who propose it view the Supreme Court as an institution that should be bent to the will of an ascendant political majority. But the Constitution’s design was precisely the opposite: The justices were granted judicial independence so that they would be free to follow the law where it leads, whether or not the outcome might upset those with political clout. Eroding that independence would weaken the government institution whose very purpose is to ensure that even the politically powerless or unpopular can still prevail in the unbiased eyes of the law.
Ultimately, that is why the only other modern court-packing plan failed miserably. Upset with Supreme Court decisions against his New Deal agenda, FDR proposed expanding the court so he could appoint new justices who might swing the results in his favor. Despite the president’s significant popularity, his proposal was met with swift and widespread disapproval by Congress and the American public because they saw it for what it was — a politically motivated effort to interfere with the rule of law.
The Supreme Court decides important and hotly debated legal questions. None of us will agree with every opinion the court issues. That is the point. But isolated disagreements with certain decisions is no reason to threaten the court’s legitimacy in all cases.
Michael H. McGinley is a partner at Dechert LLP. He previously served as a law clerk to Justice Samuel Alito Jr. and to then-Judge Neil Gorsuch.