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An Overlooked Idea for Fixing the Supreme Court

Giving each president two Supreme Court seats to fill would be a positive, transformative change.

March 12, 2021
Mike Kline
supreme court

In the coming weeks, Pres­id­ent Biden is expec­ted to convene a commis­sion to consider reforms to the Supreme Court in response to a broken confirm­a­tion process.

A number of prom­ising ideas are likely to be on the table, from term limits, to expand­ing the number of justices, to partisan balance require­ments. Each of these propos­als warrants close study, but there are also other trans­form­at­ive ideas that have gotten little atten­tion. If I had to pick one, it would be this: regard­less of the Court’s size, give each pres­id­ent exactly two seats to fill per four-year term that expire if left unused. Such a system could help to defuse the intense politi­ciz­a­tion that now surrounds every nomin­a­tion and risks real damage to the Court’s long-term public legit­im­acy.

The Supreme Court confirm­a­tion process clearly needs reform. Most recently — and notori­ously — Repub­lican senat­ors lurched from block­ing Merrick Garland’s confirm­a­tion in 2016, claim­ing that it was too close to the pres­id­en­tial elec­tion, to rush­ing through a vote for Justice Amy Coney Barrett mere days before the 2020 elec­tion. It was an exer­cise in raw polit­ics that cemen­ted a conser­vat­ive super-major­ity on the Court.

There are many factors that have gotten us to this point, but the vicis­situdes of vacan­cies are a major part of the story. Supreme Court vacan­cies are high stakes and often unpre­dict­able, and they func­tion as a zero-sum game. A vacancy on the Court that’s filled by Biden means a seat that isn’t avail­able for his successor to fill. It’s reas­on­able to wonder whether future Supreme Court nomin­ees will simply be uncon­firm­able when the pres­id­ency and Senate are controlled by differ­ent parties. This is partic­u­larly so when a justice who is not ideo­lo­gic­ally aligned with the pres­id­ent dies or retires.

It does­n’t have to be this way. Giving each pres­id­ent two seats to fill during a four-year term would decouple the nomin­a­tion process from the depar­ture of sitting justices: a pres­id­ent would get two appoint­ments regard­less of whether three justices leave the bench or none at all. (Univer­sity of Chicago law professor Daniel Hemel sugges­ted a version of this idea in a recent journal article.)

To discour­age obstruc­tion, these two seats should “open” in the first year of the pres­id­ent’s term, and they should expire if they are unfilled at the end of four years so as not to provide a wind­fall to a future pres­id­ent. As new justices join the bench and sitting justices depart, the size of the Court would fluc­tu­ate and likely stay above the current nine justices, and it would include peri­ods with an even number of justices. Over the course of 20 years the Court would likely expand to some­where in the range of 15 justices. Crit­ic­ally, such a change could be imple­men­ted without a consti­tu­tional amend­ment.

This kind of reform would be a disrup­tion to the system in the best sense of the word. Predict­ab­il­ity around Supreme Court nomin­a­tions — coupled with the inab­il­ity to hold over seats for new pres­id­ents — substan­tially reduces the incent­ives for partisan games­man­ship during the confirm­a­tion process.

It’s not a complete fix: motiv­ated partis­ans could still refuse to confirm a pres­id­ent’s nomin­ees. But obstruct­ing a pres­id­ent’s nomin­ees over four years (and two Senate classes) would be far more polit­ic­ally diffi­cult than the status quo, and the fact that seats can’t be held over for future pres­id­ents also means that obstruc­tion would bring lower returns. For these reas­ons, such a reform has the poten­tial to set the stage for a “reset” away from the partisan hard­ball that’s char­ac­ter­ized the confirm­a­tion process in recent years, and it could open the door for the estab­lish­ment of new shared norms.

Perhaps the most jarring element of such a change would be a Court with a fluc­tu­at­ing size. But while this would be a cultural shift, there is noth­ing sacred about a nine-member court or an odd number of justices. The Supreme Court itself has varied in size and had an even number of justices for brief peri­ods, and such models are a common feature in many other coun­tries.

In the United King­dom, for example, the Supreme Court is set at 12 justices and meets in panels made up of a subset of the court. Indeed, a larger size would likely push the U.S. Supreme Court to adopt new processes for its own decision-making, such as assign­ing odd-numbered panels to decide cases. This would be trans­form­at­ive in its own right: having some uncer­tainty around who will resolve future cases could discour­age justices from push­ing the legal envel­ope too far.

Creat­ing a system of predict­able vacan­cies would also address other defects in our current system. It would elim­in­ate so-called stra­tegic retire­ments, a common prac­tice where justices time their retire­ments to coin­cide with a pres­id­ent who’s likely to appoint a like-minded successor. It’s a prac­tice that gives justices outsized power to shape the Court’s future compos­i­tion — and reflects polit­ical calcu­la­tions that are hard to square with the role judges are supposed to play.

Just as import­antly, such a change would give every pres­id­ent an equal imprint on the Court. As it stands, a pres­id­ent’s abil­ity to leave a mark on the Supreme Court varies widely. Jimmy Carter did not have a single Supreme Court vacancy during his four-year term, while George H.W. Bush filled two seats and Donald Trump filled three in their single-term pres­id­en­cies. The point of giving polit­ic­ally account­able actors the power to nomin­ate and confirm justices is to provide a demo­cratic link between the Court and the coun­try. It makes little sense from the perspect­ive of demo­cratic legit­im­acy for pres­id­ents to have widely differ­ing oppor­tun­it­ies to shape the Court.

The Biden commis­sion offers a good oppor­tun­ity to look deeply at what needs fixing on the Supreme Court. There is no single answer or silver bullet, but giving each pres­id­ent two seats to fill per term is one prom­ising start­ing point.