U.S. Supreme Court. Credit: Mike Scarcella / NLJ

The bitter confirmation of Justice Brett Kavanaugh has ramped up a debate, once only the stuff of academic musings at Yale Law School and other institutions, over how to tamp down the hyper-partisan confirmation process.

Progressives, frustrated that the U.S. Senate in 2016 blocked Barack Obama’s nomination of Merrick Garland to the high court and fearing a rightward shift at the court, are leading the dialogue for—and against—various longshot proposals. And all of it hinges on Democrats winning control of Congress and the White House.

Eighteen-year term limits for the justices are in focus. Changing the size of the Supreme Court—adding two justices, for instance—is being floated now in newspaper columns, law review articles, podcasts and blog posts. What follows is a quick look at four debated proposals to change the Supreme Court.

18-Year Term Limits

In his book, “The Confirmation Mess,” Yale Law School’s Stephen Carter suggested term limits of eight or 12 years for justices. But in a recent column Carter said he now thinks nine years is better—a vacancy every single year. “No president will be tempted to create a judicial legacy by choosing nominees who will serve for decades; no opponent will see the confirmation of the wrong nominee as a lost opportunity that will not present itself again for a long time,” Carter wrote.

Most term limit proponents, however, seem to have settled on an 18-year, non-renewable term, which would create a vacancy every two years. As one proponent, Alan Morrison of George Washington University School of Law, wrote recently, “There would still be battles over particular nominees, but the shorter length of the appointment and the realization that regular opportunities are certain to arise after the next presidential election might reduce the rancor and perhaps produce more centrist justices.”

Writing at the Washington Examiner last month, Anthony Marcum said 18-year term limits “would make the Supreme Court an issue in every single campaign cycle.” Marcum also argued that post-Supreme Court planning—while still on the bench—poses “real dangers.” He wrote: “With new light at the end of the tunnel, there is little to stop justices from using their position on the Supreme Court to launch these post-judicial aspirations.”

‘Term Delays’

The University of Chicago Law School’s Daniel Hemel suggests that instead of limiting the justices’ terms, their start dates should be delayed. The president still would appoint a justice to fill a vacancy, but the new justice would not take his or her seat until that president leaves the White House.

“We would never need to worry about a justice bowing to the president who appointed her, because the justice would not take the bench until that president left office,” Hemel wrote recently. “And we would never need to worry about a president appointing a justice in order to advance his administration’s immediate agenda, because the appointee would not become a justice until that president’s administration is over.”

Court Packing

Nothing in the Constitution sets the number of justices at nine. President Franklin Roosevelt’s attempt to increase the size of the Supreme Court in order to put his New Deal proposals into effect is getting considerable attention now. But as several historians have noted, other presidents, with Congress’ help, have tinkered with the court’s size.

Harvard Law School’s Michael Klarman recently added his support to expansion of the court’s size by Democrats, if they regain political control of Congress and the White House. “Adding one justice would be an obvious and eminently equitable solution to Mitch McConnell’s theft of the seat President Obama nominated Merrick Garland to fill,” Klarman wrote. “But Democrats should not stop there.”

Most of the proposals to increase the size of the court settle on 11 justices. But Jacob Russell at Rutgers University School of Law suggests 27 is “a good place to start,” or even higher, with a phased-in process of perhaps two new justices every other year. Larger bodies, he wrote, are more representative, do more work, have fewer narrow and arbitrary splits, have more regular turnover, and “any one vacancy would not dominate the political scene as it does today.”

Princeton University professor Julian Zelizer, writing at The New York Times this week, said any push by Democrats to pack the Supreme Court would backfire.

“Given that the Republicans have tended to care about the courts more than liberals, it is likely that court packing could be more effective at energizing Republicans than Democrats,” Zelizer wrote. “Even if there is a Democratic Congress before 2020, proponents will never find the two-thirds support needed to overturn a presidential veto.”

In July, the libertarian scholar Ilya Somin, writing at the blog Volokh Conspiracy, called the liberal court-packing talk “dangerously misguided.” He said that certain rights progressives champion—including same-sex marriage and reproductive freedom—”would be far more imperiled if the entire institution of judicial review is gutted by court-packing.” He added: “That would ensure that these rights would never again get significant judicial protection—at least not if their adversaries control Congress and the White House.”

Court Balancing

Democrats should campaign in 2020 on a temporary court balancing proposal, according to Ian Ayres and John Witt of Yale Law School. If Democrats win control of Congress and the presidency in 2020, their plan would rectify what happened to Garland’s failed nomination in 2016. The court’s size would be increased by two federal judges who, by law, would sit on the high court for 18 years and after that term, would serve for life tenure on the lower federal courts.

“The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself,” Ayres and Witt wrote. “The GOP could choose to run on its own platform of court expansion. The deciders would be the American people.”

 

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