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Saving the Supreme Court

What’s needed is to make the court more democratically accountable and to end strategic retirements. Here’s how.

This piece was originally published by Democracy.

Two fundamental flaws in the Constitution’s appointment system must be fixed. First, there is no regularized system for Supreme Court appointments. Because presidents can appoint new justices only when a sitting justice resigns or dies, justices are appointed unevenly, so that some presidents have many appointments, while others have few or even none. In addition, because justices now serve longer on average than their predecessors, there are significantly fewer appointment opportunities. These developments fray the only formal link between the court and the people — nomination by an elected president and confirmation (or not) by elected senators. In the early days of the republic, when the court was viewed as weak, such defects caused little harm. But today, with the court holding immense power, the lottery appointment system undermines the court’s constitutional legitimacy and erodes the court’s connection to our democracy.

Second, life tenure permits justices themselves to strategically time their retirements so that an ideologically like-minded president can appoint their successor. Recently, this has become the norm. Such ideological control of a Supreme Court seat was never contemplated by the founders. In addition, some justices have remained on the court after a severe decline in their mental or physical capacities, in hopes of lasting until a president who shares their legal and policy preferences takes office. Such ideological control of a Supreme Court seat was never contemplated by the founders when they wrote the Constitution.

Fixing these flaws requires a constitutional amendment with two related provisions. First, Supreme Court appointments should be regular. Every president, in the first and third year of each term, would nominate a Justice, subject to Senate confirmation. Second, each new Supreme Court justice would serve a single 18-year term — still “during good behavior.” (This term limit would not apply to current justices.) And if a new justice did not serve a full term due to retirement or death, his or her successor would be nominated only to complete the remainder of the 18-year term. The successor would not get a new 18-year term.

Regular appointments work only if accompanied by term limits — which have independent benefits as well. Without a term limit, regular appointments, coupled with increasing longevity, would lead to a court that was huge. Moreover, an 18-year limit fits with a 9-member court. Eventually, two justices will end their 18-year term in each four-year presidential term, just as two new justices are appointed.

These two amendments are supported by a close analysis of what the framers did — and, more importantly, did not do — in formulating the Constitution. Moreover, the amendments are necessary because of how the Supreme Court and the country have changed since the founding. An appointment system designed for a court that was originally characterized as “feeble” does not fit a court that has become immensely powerful.

A different landscape

At the Constitutional Convention, the framers emphasized the importance of judicial independence, not wanting the justices to be dominated by the other branches of government. (Hence, the Constitution’s “good behavior” clause and the ban on Congress reducing sitting justices’ pay.) But little attention was paid to the system by which justices would be appointed. Indeed, the proposed system that was adopted — nomination by a president subject to the advice and consent of the Senate — was included in the Proposal of the Committee on Unfinished Parts, an omnibus proposal for all presidential appointments. The committee did not explain its proposal, and the convention as a whole adopted the proposal without any discussion. Alexander Hamilton did not address this nomination system in the Federalist Papersas part of the ratification debates. He did, however, defend life tenure for justices — no surprise since at the Constitutional Convention, Hamilton had urged life tenure for presidents and for members of the Senate. But Hamilton supported life tenure for justices because the judiciary was “in continued jeopardy of being overpowered, awed or influenced” by Congress and the president. Indeed, Hamilton contended the judiciary needed special protection because of its “natural feebleness,” in part because it had “no influence over the sword or the purse.” But nobody now considers the Supreme Court to be feeble. Nor would anyone now adopt the critique of John Jay, the first chief justice, that the court lacked “energy, weight, and dignity.”

Beyond asserting that the court would be feeble, Hamilton gave a second “weighty reason for the permanency” of judicial offices: Only a “few men” would have “sufficient skill.” In addition, a “temporary duration in office” would discourage those few fit characters “from quitting a lucrative line of practice” (the law), to which they might fear being too old to return. The result would be to “throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity.” (When Hamilton wrote, there were few lawyers and far fewer law schools. As our population has expanded by 77 times from the first census in 1790 to the most recent census in 2010, the proportion of lawyers has also grown substantially. For example, in Massachusetts in 1790, there was one lawyer for every 4,240 residents. Fifty years later, it was one for every 1,150 residents. And by 2019, the American Bar Association’s tally of nationally active lawyers was one for every 243 people.)

There was early evidence to support Hamilton’s concerns and Jay’s disparagement of the court. Some justices quickly left the court, or publicly disdained its role. It decided far fewer cases than today, only 60 in its first 10 years. And, in the 70 years before the Civil War, the Supreme Court held only two federal statutes unconstitutional. Even after Marbury v. Madison, where the court ruled it had the power to declare federal statutes unconstitutional, the court held only one other federal law unconstitutional before the end of the Civil War. But that case was Dred Scott, which, as we shall see, was one of the triggers for the Civil War.

But, starting after the Civil War when governments grew, the economy exploded, and new rights were claimed and created, the court’s powers steadily increased. Now the court regularly decides what governments can and cannot do. The court regularly affects the lives of the people, such as determining where they can go to school, and intimate issues such as whom they can marry, and their reproductive choices. The court regularly influences the political system, and sometimes decides who controls it, including determining who was elected as president in 2000 and how much money can be spent in elections. Changes in the country have also rendered obsolete Hamilton’s second argument favoring the current system. There are now plenty of people able and willing to serve on the court. And they are not only white men. Moreover, the job has become much more desirable. Justices’ financial security has been protected through pensions, and their working lives have improved. For example, even though justices today decide about one-quarter the number of cases the court decided in the latter part of the 19th century, the clerks supporting each justice have increased from one at the end of the 19th century to four today. So today, for many reasons, there certainly is no shortage of highly qualified people who would be proud to serve as a Supreme Court justice.

There has also been a massive change in the scope and size of government. When George Washington became president, more people worked at his Virginia plantation than in the entire federal government. America was smaller, less complex, less interconnected, less diverse, less free, less economically vigorous. As the nation’s population and territory multiplied, and the economy grew and changed, laws governing the country exploded. People today expect more of government. Individuals have more rights, and governments at all levels take many more actions impacting those rights, as well as the nation’s economy and culture. All this leads to more cases and controversies for the court to resolve.

Since Washington’s time, the court has moved from the margins of our everyday lives to deciding crucial issues affecting the country. Truly important decisions — such as the shameful 1857 Dred Scott decision, in which the court ruled that black people could never be citizens and that it was unconstitutional to ban slavery in any state — were rare in the republic’s first decades. Since Dred Scott, the court has sometimes been a force for progress on race, and sometimes a force against. As the economy expanded in the late 19th century, so too did regulation and the accompanying legal battles decided by the court. In the 20th century, the court began playing a crucial role on social issues, and also extended its power to decide how the American political system operates. In all these areas, the court’s actions have sometimes pleased conservatives and frustrated liberals. And, at other times, the court’s actions have pleased liberals and frustrated conservatives. But the consistent story has been that the court’s power, as well as its independence, has increased.

To appreciate the reach of today’s Supreme Court, consider just a few questions decided in the 21st century. Who was elected president. How much money can be spent in elections and by whom. Who can marry whom. The scope of the right to bear arms. The legitimacy of affirmative action in universities. The legality of the Affordable Care Act. The unconstitutionality of part of the Voting Rights Act that had protected minority voting rights for decades. That the court cannot touch political gerrymandering. Moreover, all these landmark cases were decided by a 5–4 vote, dramatizing the power held by each individual justice, a power also shown by the fact that, at times, the dissent of just one justice eventually became the majority view.

With the court deciding so many consequential questions, who gets appointed to the court, and how often appointments are made, is of great importance not only to constitutional scholars, but to the public as well. Not surprisingly, given the stakes, reactions to the court have become much more political and partisan. For a while, both Democrats and Republicans at times echoed Franklin Roosevelt’s rather tepid critique that justices should “act as justices and not as legislators.” But more recently, parties and presidential candidates have expressly promised to appoint justices who would uphold, or strike down, particular decisions such as Roe v. Wadeor Citizens United. Media coverage has also become much more politicized. In the 1950s, for example, articles in the New York Times used the terms “liberal justices” or “conservative justices” only eight times. From 2000 to 2010, the paper used those terms 160 times.

As rhetoric surrounding the court has polarized, confirmations of justices themselves have become more partisan and, in our century, every nomination has been hotly contested. From the start, there were occasional controversies. For example, Washington’s nomination of John Rutledge as his second chief justice was defeated because senators disagreed with Rutledge’s position on a treaty with Great Britain. Thereafter, from time to time, there continued to be bitter fights over particular nominations, sometimes based on character or competence, and sometimes centering on a point of view. Nonetheless, until our time, these fights were rare. Indeed, the Senate once approved most justices by a “voice vote,” when no senator pushed for a recorded vote and there was no meaningful controversy. In the era from George Washington through Abraham Lincoln, 38 of 48 successful Supreme Court nominees were approved by voice vote. From Ulysses Grant through Lyndon Johnson, it was 41 of 67. Thus, over the nation’s first 18 decades, two-thirds of successful nominations were approved by voice vote. But, in the 50 years after Lyndon Johnson’s presidency, there have been zero voice vote approvals.

Until the 21st century, moreover, bitter fights over nominees were always followed by a calm period, including overwhelming, sometimes unanimous, bipartisan support for new nominees. This was true for three Nixon nominees and one Ford nominee after the rejection of Nixon’s nominees Clement Haynsworth and G. Harrold Carswell; for Reagan’s nominee Anthony Kennedy after the Robert Bork defeat; and for Clinton’s two nominees after the bitter fight over H.W. Bush’s nomination of Clarence Thomas. In the 21st century, however, for the first time in history, every nomination that has reached the Senate (there have been six) has been an ideological battlefield with sharp political divisions and numerous “no” votes.

When the court had less power than today, presidents were also less rigid in proposing justices who fit an ideological profile. For example, Woodrow Wilson’s first two nominees were James McReynolds, a conservative, a racist, and an anti-Semite, and Louis Brandeis, a progressive and the court’s first Jewish justice. Presidents Hoover, Truman, Eisenhower, and Kennedy also nominated an ideological mix. Today, however, presidents run promising to nominate justices who will hew to a rigid ideological, partisan view.

Procedural changes relating to the Senate have also contributed to increases in controversy and partisanship. The Seventeenth Amendment, ratified in 1913, to provide that senators would be elected by the people (instead of state legislatures), and the Senate changing its rules in 1929 to make all confirmation hearings public, made senators more concerned about the impact of confirmation hearings on their constituents. And then in 2013, the Senate, under Democrat Harry Reid, eliminated the filibuster for all federal judges except Supreme Court nominees. In 2017, Republican Mitch McConnell retaliated by eliminating the filibuster for Supreme Court justices. Filibusters (or the threat of filibusters), which required 60 votes to overcome, had perhaps been a force against overly partisan nominations, since to get to 60, a nominee usually had to win some votes of senators from the other party.

Public interest groups have also played a role in tension around Supreme Court nominations. In 1930, the Republican-controlled Senate, on a bipartisan basis, rejected Republican President Herbert Hoover’s nomination of John Parker, who had initially been considered a sure shot. Lobbying by the AFL and the NAACP was crucial to Parker’s defeat. In the Bork controversy, opposition non-profit groups outmatched his supporters. Since then, public interest groups have played an increasingly big role on both sides, on all nominations. Indeed, in 2016, candidate Trump committed to select his nominees from lists provided from a conservative interest group. As president, he picked his two nominees — Neil Gorsuch and Brett Kavanaugh — from those lists.

More powerful. More divided. More controversial. None of these things is necessarily bad. But when some presidents appoint an outsized number of justices, when justices far outlive the elected officials whose views they once reflected, and when justices themselves play a role in determining the ideology of their successor, it is not surprising that more people question the court’s democratic legitimacy.

There is a connection between that frustration and how we have been appointing justices to the Supreme Court. First, as mentioned, because presidents can nominate a justice only when one retires or dies, some presidents get many appointments, others few, or occasionally none. FDR appointed eight justices in less than six years during his second and third terms. William Howard Taft and Warren G. Harding appointed nine in their six and a half years in the Oval Office. But Woodrow Wilson, in the eight years of his two intervening terms, appointed only three. Earlier, in their combined 12 years as president in the mid-19th century, Andrew Jackson and Martin Van Buren (who had been Jackson’s vice president) appointed eight justices. But during the following 20 years, the next seven presidents appointed only six. There are many other examples of such unevenness. In addition to the unfairness of these wild swings, the randomness ratchets up the stakes, and the controversy, for every Supreme Court nomination.

Second, while vacancies have always been unpredictable, they have also become increasingly rare. Because justices now serve longer on average, there are significantly fewer opportunities for appointments. For 125 years starting in 1850, after the court generally had nine members, an average of 14 justices was appointed each quarter century. But since 1975, that average has dropped to eight.

The unevenness, and the increasing rarity of appointments, fray the link between court and country, reducing the intended legitimacy of the Constitution’s court-appointment system where officials elected to represent the people’s interest — the president and the Senate — are meant to “democratically screen” justices.

Third, lifetime tenure now increasingly leads to generations of service. In the 19th century, death rather than retirement was the normal end of a justice’s service. Of the 38 justices who left the court in the 19th century, 27 died, and only 11 resigned. That ratio switched in the 20th century. Indeed, after 1950, of 26 justices who left the court, only four did so by death. This shift helped open the door to the burgeoning “strategic retirement” practice of justices acting politically to time their retirements so that a president who shares their legal-policy preferences gets to propose their successor.

And unlike when Hamilton foresaw that only a few “men” would consider joining the court, today in our much more populous country, there are many qualified lawyers, and they are no longer only white, Protestant men. However, because of the current system of increasingly rare — and random — vacancies, and because of increased polarization, today the court is becoming less diverse in terms of experience. For decades, almost every new justice — all except for Sandra Day O’Connor and Elena Kagan — has come from a job on a circuit court of appeals. Not one since O’Connor had been an elected official. This is a huge change from George Washington’s appointees, all of whom had political experience, as well as from the many political jobs that had been held by the great Chief Justice John Marshall, and from the varied experience of the justices who decided Brown v. Board of Education.

The change to relying on the courts of appeals to feed the Supreme Court is part of a trend to appoint ideologically reliable justices. This trend is one of many reasons why the wide swings in appointment opportunities from one president to another, coupled with the overall reduction in appointment opportunities, adds to nomination anxiety, and increases political characterizations of the court.

Unlike much of the Constitution, our Supreme Court judicial appointment and tenure system has not been emulated at home or abroad. Of the 50 states, none uses the same system. And no other democratic nation follows our model. Moreover, the Constitution has been amended to address how presidents and senators are elected and to limit how long a president can serve. This confirms that the selection method, and the terms, of justices are appropriate subjects to explore.

Amending the Constitution

Continued reliance on a 232-year-old system for appointing justices harms the court and the country. We need a new system that cures the harms but preserves judicial independence. This requires a constitutional amendment. Constitutional amendments must clear a high hurdle — approval by two-thirds of both the Senate and the House, and then by three-quarters of the state legislatures. Almost 12,000 amendments have been proposed. Only 27 adopted. But, as James Madison taught, amendments will be “suggested by experience” to address “discovered faults.” Our experience has demonstrated the faults of the appointment system for Supreme Court justices.

So much has changed since the founding. No longer can you imagine a Chief Justice saying the court lacked “energy, weight, and dignity.” Nobody today would join Hamilton in describing the court as “feeble.” Gone are the days when most Supreme Court nominations were promptly approved by a “voice vote.” Gone are the days when court decisions were usually unanimous.

Instead of a constitutional amendment, some now suggest “packing” the court, perhaps to avenge the Senate Republicans’ refusal to grant Merrick Garland a hearing. But, even if this were politically possible (it requires control of the presidency and both houses of Congress), it is a short-term partisan legislative step, not a bipartisan constitutional solution. It cures nothing. Instead, it would exacerbate the court’s politicization. Moreover, the history of court packing is not glittering. The most famous attempt, Franklin Roosevelt’s in 1937, was a dismal failure. Despite FDR having won 98.4 percent of the Electoral College vote in 1936, his plan was soundly defeated — opposed in Congress by both Democrats and Republicans, and even by the justices who had been on FDR’s side in cases addressing the New Deal.

There are bits of it in earlier history. In 1801, the lame-duck John Adams Congress “unpacked” the court from six to five members to limit President-elect Jefferson’s opportunities to appoint justices. When they took office, the Jeffersonians repealed the change. Later, in 1861, the Civil War Congress increased the court to 10 members to give Lincoln more appointments. (After Lincoln was assassinated, Congress reduced the court to seven to prevent Andrew Johnson from having any appointment opportunities. The number was restored to nine when Ulysses Grant became president.)

Nothing in our nation’s history supports court packing today, however. Any possible court packing would be correctly perceived as a partisan power grab. And when party fortunes change, the party that lost the first packing vote would proceed to pack the court in its favor.

In any event, to address fundamental problems — those that fray the court’s link to our democracy, and that add to the polarization of the court — we need a constitutional amendment. Given the high hurdles for amendments, this cannot be achieved without bipartisan support. This should be achievable. In the past, both parties have been harmed at different times by the bunching of Supreme Court appointments. And at different times in the future, both parties will be harmed again. Both parties are also being harmed by the overall reduction in vacancies.

But the proposed amendment is neither Republican nor Democrat. It is rooted in the most fundamental American values. The founder of the Federalist Society, Steven Calabresi, as well as liberal icon Sanford Levinson, have written in favor of similar constitutional changes. Both parties understand the importance of a regular opportunity to connect the court to the country. Both parties would benefit from a return to the norms of appointments from the shrinking numbers starting in 1975. While each party has obtained short-term advantages from time to time from strategic retirements, neither party can endorse a system where justices themselves can make political decisions on when to retire so as to help mold the court’s future. Similarly, while both parties can now increasingly see benefits in appointing younger justices — with a bias against appointing justices over 60 — neither party has a principled reason to support a system that creates that bias.

The 18-year term limit should not apply to current justices. To do so would not seem fair. (As a point of precedent, the Twenty-Second Amendment limiting the president to two terms did not apply to Harry Truman, the president in office when the Amendment was proposed to Congress.) So for a while, the court will have more than nine members, and at times an even number. But Supreme Courts in many nations are larger than ours. And, at the founding, the court had six members; under President Lincoln it had ten; and after Justice Scalia’s death in 2016, it had eight. (Indeed, an even number might well encourage more consensus opinions.)

However one feels about either the court’s historical, or current, ideological direction, it should not affect one’s support for the proposed constitutional amendment. The court will continue to evolve sometimes in a liberal and sometimes in a conservative direction. All believers in equity and in there being a connection between the court and the country — where a potential justice is “screened by the democracy” — should decry the current system of wildly uneven, and increasingly rare numbers of appointments. All should welcome regular appointments as more consistent with our constitutional vision. All should recognize that bunching of appointments and gaps in appointments have hurt both parties in the past, and will hurt both parties in the future unless the Constitution is amended. And all should welcome an end to strategic retirement decisions and to the political appearance of such decisions.

So much that has changed about court and country drives the need for a constitutional amendment. But our most fundamental ideals have not changed. We remain a nation based upon the truth that, in the words of the Declaration, “Governments deriv[e] their just powers from the consent of the governed.” We remain a nation that, in the words of the Preamble to the Constitution, was “ordain[ed] and establish[ed]” by “We the People.” And we continue to strive to assure that, in the words of the Gettysburg Address, “[T]his nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people shall not perish from the earth.”

Adoption of a constitutional amendment to make the court more democratically accountable through regular appointments, a return to the traditionally larger number of appointments, and the end of strategic retirements, will be a next step on this nation’s journey to try to live up to these lasting truths.