Court reform is a hot topic these days. Scholars, commentators, and politicians argue that the Supreme Court is aggrandizing its powers at the expense of Congress, undermining American democracy, and facilitating the Trump administration’s authoritarian overreach both with substantive rulings like the immunity decision and with its persistent interventions in favor of the president on the shadow docket – to name just a few of the critiques. Reform proposals include term limits (an idea that has long had cross-ideological support), increasing the number of justices (a version of which Rep. James Clyburn endorsed just this past weekend), and narrowing the court’s jurisdiction.
Court reform opponents, on the other hand, often argue that reforming the court in response to disfavored opinions inappropriately politicizes and thus undermines an independent judiciary.
There may be some truth to this argument. Restructuring the judiciary or dramatically changing the size or operation of the court in our politically polarized environment could, for example, lead to a political tit-for-tat where each party adds seats to the court (for example) whenever they can. Reformers should take into account what types and packages of reforms are more likely to produce stability.
But it is a mistake to think about the work of the court as so removed from politics that reforms are inherently inappropriate.
I start from the premise that how to interpret and apply the Constitution is an appropriate subject for democratic contestation. For example:
- Should we interpret the Constitution according to the “original public meaning,” which many originalists argue is the best way to identify what was actually ratified and therefore, they say, what has the strongest claim on democratic legitimacy? On the other hand, should it matter that such an inquiry, by definition, restricts the focus of the inquiry to a time when most people living in the United States could not vote or participate in public debate and might not even have been literate? Or what if the original public meaning is unclear?
- Does it matter at what level of generality we consider various constitutional provisions or to what extent we take into account how the drafters and ratifiers would have applied them? For example, if we view “equal protection of the law” as a statement of principle, then it is not hard to see why segregated schools are unconstitutional – even if few in 1868 thought that was how the 14th Amendment would be applied. Likewise, how should we decide whether that principle of equality reaches discrimination against women, discrimination on the basis of religion, or discrimination on the basis of sexual orientation and gender identity?
- What should we do when different provisions or aspects of the Constitution are in tension or conflict with each other? As Justice David Souter pointed out, the First Amendment is written in absolute terms. Yet the Constitution also contains a commitment to national security, albeit a less express one. Sometimes those commitments may be inconsistent. How should judges and justices resolve those dilemmas?
These questions are worthy of public and political debate, which the Constitution itself contemplates and allows for. Why else, after all, are Supreme Court justices nominated by the president and confirmed by the Senate? As a result, the role of the court and the types of justices that will be appointed can be important campaign issues, and the nomination and confirmation process offers another opportunity for this public debate. (I’ve written elsewhere about how important confirmation hearings can be to the public’s understanding of what Supreme Court justices do and to different visions of the Constitution.) Indeed, I think that the national argument over Judge Robert Bork’s nomination, which engaged directly with his originalist philosophy, was democracy in action.
So democratic input (with a small d) is built in. But a several factors have reduced its impact.
One factor is the Constitution’s guarantee of life tenure for the justices. Life tenure means that the timing of justices’ deaths is crucial to the court’s make-up. And it encourages strategic retirements (see Justice Anthony Kennedy). All of that directly affects the number of justices a particular president gets to appoint. President Jimmy Carter appointed none in his single term. President Barack Obama appointed two over the course of two terms. President Donald Trump, in his first term alone, appointed three.
The constitutional arrangement also rewards gamesmanship other than strategic retirements, as we saw after the deaths of Justice Antonin Scalia and Justice Ruth Bader Ginsburg. Then-Senate Majority Leader Mitch McConnell refused to allow the Senate to consider Obama’s nominee, Judge Merrick Garland, to replace Scalia because, he said, it was an election year. (The election, at the time of Scalia’s death, was eight months away.) Nevertheless, after Ginsburg’s unexpected death only weeks before the 2020 election, McConnell rushed through Trump’s nomination of Justice Amy Coney Barrett, with the confirmation vote shortly before Election Day.
Readers of SCOTUSblog undoubtedly know all of that. But here’s another way of looking at it: We have a minoritarian court, in which its current make-up is further from the democratic input ordinarily provided by the nomination and confirmation process than perhaps ever before. As Kevin McMahon details in his book, “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices And the People,” five current justices were confirmed by the votes of senators who collectively represent millions fewer Americans than the senators who voted not to confirm. Using popular vote totals as a proxy, McMahon has shown that when Clarence Thomas was confirmed, for example, with a vote of 52-48, the senators who voted for his nomination collectively received nearly 3 million fewer votes than those who voted against it. Justice Samuel Alito, too, falls in this category, with a vote difference of 1.8 million.
The three Trump justices – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are even more minoritarian, as McMahon points out. For one thing, the president who nominated them himself lost the popular vote by more than 2.8 million votes. And in addition, the difference in popular vote totals for the senators voting for and against confirmation has grown dramatically. When Gorsuch was confirmed, for example, with a vote of 54-45, the senators who voted for his confirmation collectively received just under 56.7 million votes, while those who voted against it received 76.5 million, nearly 22 million more. (Another data point, courtesy of Daniel Immerwaher, reviewing Nikolas Bowie and Daphna Renan’s new book “Supremacy: How Rule by the Courts Replaced Government by the People”: “In the span of the Presidencies that yielded today’s Court, Republicans won the popular vote less than a third of the time but have appointed two-thirds of the current Justices.”)
All of this is perfectly constitutional. But a justices’ nominations and confirmations are not the only ways the Constitution allows for small-d democratic input into the make-up and operation of the Supreme Court. Congress also has the power to add seats to the court; it has done so before. And Congress has the power to control at least some aspects of the court’s jurisdiction and workload. Indeed, the current arrangement, where the court has almost complete discretion over what cases it decides, is due to a series of 20th century laws, culminating in 1988. (See these posts for longer, albeit not exhaustive, lists of congressional power related to the Supreme Court.)
None of this is to advocate for the wisdom or the constitutionality of any particular reform proposal. It is instead to push back against the idea that changing the court necessarily politicizes it inappropriately. The Constitution contemplates and provides a number of mechanisms for democratic input and responses to the Supreme Court. As described, one of those mechanisms, nomination and confirmation, has arguably become a less effective way to provide that input than in the past. We should not ignore the others.