reforms for a broken Supreme Court

In the Republic of A, the highest appeals court may overturn legislation based on the text of an idealistic but short and vague constitution (without further appeal to the legislature), that court consists of just nine justices appointed for life, appointment requires an agreement between the president and the Senate, and those two bodies are separately elected and can belong to different parties. This sounds like … a royal mess.

You’d predict that Supreme Court appointments in this republic would be another form of regular legislative politics, but with higher stakes and less accountability. When one party controlled both the executive branch and the Senate, they would appoint a justice to promote their agenda for the rest of her or his life. When the branches were split, they would be unable to make appointments at all, unless as part of elaborate horse-trades. If the public did not accept these realities, then politicians would attempt to conceal the underlying situation by endorsing justices with appropriate judicial “temperaments” and sterling resumes, trying to avoid discussing the nominees’ positions on issues.

The actual record in the Republic of the USA is a bit more complicated. There have been long periods of rocky confirmations–especially 1800-1870–as well as lulls in that strife.

Note also the waning public confidence in the Supreme Court. Here I show the trend for younger adults separately, because early-adult experiences are formative, and youth have lost a lot of confidence since ca. 2000.

One explanation for the lulls could be a degree of consensus about the issues coming before the court, but that can’t explain why Taft could appoint five conservative justices, and FDR, eight liberals. Throughout that period, there was a bitter debate about the role of government, yet presidents were successful at appointing justices who shared their views.

A different explanation is that our two parties were divided internally on ideological lines from about 1890-1980. Thus any president could almost always assemble a majority by combining his whole party with the faction of the opposition that was aligned with him ideologically. That situation only ended ca. 1990, when the parties polarized in Congress. Note the resulting turbulence since then.

The Supreme Court is not simply a machine for implementing partisan policy preferences. Justices are also guided by legal principles, considerations that arise in the specific cases or controversies that come before them, constitutional texts and interpretations, precedents, deliberations among the Nine, and concern for the institution of the court. They may reach unexpected conclusions.

Yet we see generally different results from justices appointed by Democrats versus Republicans. That means that the Supreme Court represents at least a big dose of legislative politics by other means. The small number of justices, their life terms, and the randomness of who can appoint and confirm new members all raise the stakes and lower our confidence in the fairness of the process.

From this perspective, the familiar list of grievances (Bork, Thomas, Garland, Gorsuch, Kavanaugh) is predictable and only likely to worsen. If we are open to alternatives, we might begin to consider:

  1. Weakening judicial review so that the Court is less likely to be the final arbiter of deeply contested issues. That would be a democratic reform but not a liberal one, and it could be dangerous for minorities of all kinds.
  2. Strengthening advice and consent by developing a norm that the president should choose from a short list acceptable to members of both parties. That reform has a centrist bias that may not be desirable.
  3. Constitutional reform. For instance, imagine that justices hold rotating nine-year terms. Then every year at least one vacancy would arise (more if someone resigned or died). Debates over confirmation would be constant, but the stakes would fall. Each new president could count on four chances at appointments, followed by the referendum of a national reelection campaign. A two-term president with a Senate majority could entirely reshape the court, but her successor could change it back.

[Confirmation data from the Senate. See also: is our constitutional order doomed?are we seeing the fatal flaw of a presidential constitution?,  two perspectives on our political paralysis,  and the changing norms for Supreme Court nominations.]

About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.
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