United States: divisive cases increase urgency of calls for Supreme Court reform

Jennifer VenisThursday 5 August 2021

Professor Paul Smith, Professor From Practice at Georgetown Law and Vice President for Litigation and Strategy at the Campaign Legal Center, tells Global Insight ‘the critique is that Republicans have gained power over these issues, even though they don’t have majority support in the country, through bad luck as well as manipulation. Two different elections where the president was elected even with not winning the popular vote – Bush and Trump – have made all the difference in the world in the future of the Supreme Court.’

He adds that with the handling of appointments since Merrick Garland, who was chosen to sit on the Court by Barack Obama at the end of his presidency but whom Republican senators refused to confirm, ‘there’s an awful lot of feeling that the Court is where it is by illegitimate means. And that will be heightened if the Court really does start getting very aggressive.’

In April, President Biden signed an Executive Order creating a Presidential Commission on the Supreme Court of the United States – composed of bipartisan experts – to analyse the merits and legality of particular reform proposals, which include the ‘length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices’.

The Commission will report back by October, but will not make any recommendations, and Biden himself is not a known supporter of reform.

Professor Smith believes this is a way for Biden to be responsive to the unhappy Democratic base, ‘but he knew they didn’t have the votes to do anything and he didn’t think that they had a legitimate basis for it yet. This is a way to park the issue for a year, see where the Court is in a year, see where the country is in a year.’

Fred Davis, former Co-Chair of the IBA Business Crime Committee and a lecturer in Law at Columbia Law School, believes ‘if the Commission can reach a consensus, that’d be major. It probably won’t satisfy everybody. […] But if that group were to say, look, there’s a problem here, and second, we agree on this outcome, that would go a long way. Because I don’t think anybody can point at this group and say it’s a bunch of left wingers.’

For some, reform cannot wait, and in April Democratic senators proposed legislation to expand the Supreme Court by four seats. They face an immense challenge, as opponents to reform include many members of the Democratic party, as well as most Republicans. The latter in particular have lambasted proposals for reform, decrying ‘court packing’ and accusing the Democrats of attempting a ‘power grab’.

Sarah Turberville, Director of the Constitution Project at the Project on Government Oversight, believes that reform should not be about political gains, but says ‘the confluence of the broken confirmation process, plus decisions on major issues of the day starting to break upon these reliable lines, is something that’s very harmful to the Court as an institution. That, to me, is the most important impetus behind reform.’

She says Supreme Court vacancies more frequently arising during Republican presidencies is just one piece of the puzzle, and ‘conservatives have also been very effective at politicising the Court and making its fate something that starts to have a lot of cachet in electoral politics. That, in turn, has influenced the conduct of senators when a Supreme Court vacancy comes up.’

Trump’s Supreme Court appointments are all relatively young and will retain the position for life, and his more than 200 lower court appointments are expected to reach peak power in 2040, far outlasting the political careers of many elected officials in Congress.

‘I don’t think it was ever intended for the appointment of a Supreme Court justice to be something that could be viewed as a way to entrench power for decades’, Turberville adds. ‘Diffusing that concentration of power in single individuals on the Court could go a long way to turning down the temperature on the confirmation process.’

She is taken by a proposal to impose staggered 18-year term limits on Supreme Court justices, which, ‘if you’ve got a nine-justice court, would work out so a president over the course of a four-year term could be able to make two appointments. And it would certainly address this problem of the entrenchment of power’, she says. ‘If you’ve got something that happens on a more routine basis, the energy for the fight dwindles. […] it would be good for it as an institution.’

Davis is in favour of giving every president the power to name one justice every two years, with the nine most junior justices serving as a ‘college’ to decide cases. He believes this would ‘change the atmosphere, make it less of a royal chamber and more of an ongoing part of government that I think would still retain its independence’.

‘It wouldn’t help today’s agenda, but it’s a long-term solution […] that could change the political dynamics overnight,’ once in place, he says. However, he adds that ‘the notion of a quick fix, namely getting enough judges on the Court so that Biden can get his legislation through this next year, is dangerous.’

But to Professor Smith, ‘the only reform that is feasible would be adding justices, because you can do that by congressional action rather than constitutional amendment’.

Even then, he says, ‘it’s very hard to pass any kind of change in the number of justices, because there will always be people who think once we get into this game we ruin the court, it no longer will have any real perceived legitimacy and we’ll end up in an arms race. The next time [the other party] gets control they’ll add three more justices, and we’ll end up with 40 justices, and no one will care what they say anymore because no one will think they’re anything but a bunch of hacks. That is the fear.’