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Court Reform Gets New Attention

Controversy surrounding judicial nominations has pushed questions about the federal courts’ structure and powers onto the agenda.

Published: December 30, 2020

Pres­id­ent Donald Trump will exit the White House having left his imprint up and down the federal bench. A slew of young and deeply conser­vat­ive judges will shape district and appel­late courts — and Amer­ican life — for a gener­a­tion or more to come. No less remark­able is that Trump named three justices to the Supreme Court, and that each nomin­a­tion was mired in contro­versy and secured only by a narrowly partisan Senate vote.

This has thrust debate about the Supreme Court into the public square, where it became a hot-button topic on the 2020 campaign trail. These nomin­a­tions are char­ac­ter­istic of a broken system that is increas­ingly mired in “partisan consti­tu­tional hard­ball,” says Alicia Bannon, managing director of the Bren­nan Center’s Demo­cracy Program.

Facing an ideo­lo­gic­ally extreme bench, schol­ars and activ­ists have offered a vari­ety of propos­als that would alter the struc­ture of the courts or constrain their powers. Some reforms could lower the polit­ical rancor that engulfs every judi­cial nomin­a­tion and yield a Supreme Court with greater public legit­im­acy — a win for both the judi­ciary and Amer­ican demo­cracy, Bannon says.

Why should Supreme Court reform be a prior­ity?

The Court is supposed to be the last line of defense for hold­ing our govern­ment account­able to the Consti­tu­tion, protect­ing our rights, and making sure our demo­cracy func­tions. All too often, it’s done the oppos­ite. So, for example, in a number of cases during the 2020 elec­tion season, the Court made it harder for Amer­ic­ans to vote in the middle of the pandemic.

These decisions come against the back­drop of a judi­cial confirm­a­tion process that has descen­ded to the rawest kind of partisan consti­tu­tional hard­ball. This is really damaging for the rule of law and for our demo­cracy. Courts don’t have an army. What they have is their public legit­im­acy — the fact that people are will­ing to accept judi­cial decisions, even when they vehe­mently disagree with them. Part of that legit­im­acy has come from norms of judi­cial confirm­a­tions, which are crit­ic­ally import­ant so that we don’t have a Court whose struc­ture seems to be defined by polit­ical games­man­ship.

There is also a broader demo­cratic legit­im­acy defi­cit on the Court. We appoint our judges through a polit­ical process so that there is a link between the Court and the values of our coun­try. But this means that demo­cracy defi­cits in our polit­ical system also rever­ber­ate in the judi­ciary. For example, among the six conser­vat­ive justices, all but Chief Justice Roberts were confirmed by senat­ors who won their most recent elec­tions with fewer votes in sum than the senat­ors who voted against confirm­a­tion. This affects the Court in substant­ive ways; it is ideo­lo­gic­ally extreme and not aligned with either the public or the legal profes­sion. 

For all these reas­ons, there’s tremend­ous urgency to fixing the Court. But I don’t think anyone is expect­ing it will happen overnight. It’s going to require a lot of public educa­tion and kick­ing the tires to figure out how to do it right. Pres­id­ent-Elect Joe Biden has announced he will create a commis­sion to study court reform. This is a valu­able first step on an issue that isn’t going away. 

What are some plaus­ible start­ing points for reform?

It’s best to start with the prob­lems that you’re trying to address: What pack­ages of reforms respond to those concerns and reset the dynamic so that you don’t have contin­ued escal­a­tion around confirm­a­tions and so that the Court is more stable, more repres­ent­at­ive, and more legit­im­ate?

One way that reformers could lessen the power of indi­vidual justices is by chan­ging the size of the Court. While expan­sion is often framed as a partisan move, it could be a compon­ent of a broader reform of the Court’s struc­ture. Subsets of justices could hear cases in panels, like courts do in India, Germany, and the United King­dom. Some uncer­tainty around who’s going to be the decid­ing vote in any partic­u­lar case would discour­age the Court from push­ing the legal envel­ope too far when decid­ing cases, and it would help lower the stakes — and hope­fully the temper­at­ure — of confirm­a­tions.

Another place to look is how vacan­cies get created. It’s become the norm for justices to time their retire­ments to wait for a pres­id­ent who’ll appoint a like-minded successor. That does­n’t make any sense from the perspect­ive of the Court’s legit­im­acy or the demo­cratic process. Regu­lar appoint­ments — where every pres­id­ent would get two appoint­ments every four years — are one way of intro­du­cing predict­ab­il­ity into the process and taking away justices’ power to shape the Court’s future compos­i­tion. Term limits are also respons­ive to this concern.

One feature of pair­ing regu­lar appoint­ments with term limits is that it would hold the size of the Court stable. But should Amer­ic­ans feel so attached to a bench of nine?

The Court has varied in size over the years. It’s been as small as five seats; it’s gone up to 10. But the Court has stayed at nine seats since 1869, and Pres­id­ent Frank­lin Roosevelt’s push to increase its size was defin­it­ively rejec­ted. So while there’s noth­ing in the Consti­tu­tion that makes nine a magic number, it has also been the norm for a long time. If expan­sion is considered, it would be import­ant to do it in a way that the public sees as justi­fied and legit­im­ate.

One advant­age to a larger court is that it can open up oppor­tun­it­ies for greater diversity — some­thing that has been a big chal­lenge in terms of educa­tion, geography, race, and ethni­city. Eight of the nine current justices gradu­ated from either Harvard or Yale Law School. On a lot of dimen­sions, the Court does not look like Amer­ica, or even the legal profes­sion.

How might the current Court react to efforts to curtail its power or change how it oper­ates?

First off, if certain reforms actu­ally became law, it would most likely be the current justices who would decide whether they pass consti­tu­tional muster. Some reforms, such as adding seats, are pretty uncon­tro­ver­sially consti­tu­tional. For many other propos­als, it’s a harder ques­tion, and Article III of the Consti­tu­tion does­n’t have a lot of detail. For example, could you take away the Supreme Court’s juris­dic­tion to hear consti­tu­tional chal­lenges to federal legis­la­tion? I suspect many on the Court would be skep­tical or even hostile to at least certain poten­tial reforms. Many could require a consti­tu­tional amend­ment.

There’s also the ques­tion of how a public conver­sa­tion about Court reform could affect the justices’ beha­vior now. There are justices who are likely concerned about the percep­tion that the Court has become politi­cized. Chief Justice Roberts has long played that role; we know less about some of the newer justices.

I’ve been disap­poin­ted by how little the Court has done to clean its own house. The Supreme Court justices are the only judges in the coun­try who don’t follow a code of conduct. It’s telling that the Court has yet to adopt one; it would be a small but import­ant step toward bolster­ing its public legit­im­acy.

The vast major­ity of federal cases end in lower courts, and many lawsuits involving the Trump admin­is­tra­tion have shown that district and circuit courts can shape national policy. How do these courts fit into a reform agenda?

There’s a lot to be concerned about on the lower courts. Pres­id­ent Trump has left a huge conser­vat­ive imprint on the judi­ciary. Civil rights lawyers and public defend­ers are virtu­ally absent from the bench right now. There’s also a stark lack of demo­graphic diversity. Nearly three-quar­ters of federal judges are white, and more than two-thirds are male.

We need a differ­ent approach to the nomin­a­tions process and path­ways to the federal bench. As pres­id­ent, Jimmy Carter made a “commit­ment to equal justice under law” a part of his criteria for assess­ing poten­tial judges. He also expli­citly prior­it­ized racial and gender diversity. Biden needs to look beyond prosec­utors’ offices and corpor­ate law firms for our future judges, and he should be inten­tional about bring­ing demo­graphic and exper­i­en­tial diversity to our courts.

We also can’t have a repeat of the judi­cial vacan­cies crisis that emerged during the Obama admin­is­tra­tion, when Repub­lican senat­ors slowed down and blocked lower court nomin­ees and left the courts over­whelmed and under­staffed. If Repub­lic­ans retain control of the Senate, there will need to be tremend­ous polit­ical pres­sure on them to do their job.

And we need to look at whether lower courts have the resources to do their job and resolve cases in a timely way. There hasn’t been a compre­hens­ive judge­ship act since 1990, and since then, case­loads have grown tremend­ously. The federal courts’ poli­cy­mak­ing body has said we need more judges.

We should also be think­ing about how our system of justice is and isn’t work­ing for people. Judge-made doctrines like qual­i­fied immunity have slammed the court­house doors to those look­ing to hold police account­able for abuses. Laws like the 1996 Prison Litig­a­tion Reform Act pose huge barri­ers to incar­cer­ated people bring­ing civil rights cases. Congress should open our courts so that people can vindic­ate their rights.

The Biden admin­is­tra­tion and the new Congress are poised to prior­it­ize demo­cracy reform. How does this agenda inter­sect with the issue of court reform?

So many of the prob­lems in our courts come from the fact that our polit­ical branches aren’t suffi­ciently repres­ent­at­ive and respons­ive to the public. This makes it harder for the public to advoc­ate for strong judi­cial nomin­ees. It means that a lot of issues that should be addressed legis­lat­ively end up getting booted to the courts. And most consequen­tially, it means that Congress only rarely uses its power to undo harm­ful Supreme Court decisions, even though in many instances the Court has left that option open.

Fixing our demo­cracy is a tall order, but Congress will have the chance to consider key legis­la­tion. The For the People Act (H.R. 1) would expand voting rights, reform our campaign finance system, end extreme gerry­man­der­ing, and do much more. And the Voting Rights Restor­a­tion Act (H.R. 4) would restore vital protec­tions against discrim­in­a­tion that were gutted by the Supreme Court in 2013. If we have a govern­ment that’s really by, for, and of the people, that will make the courts less import­ant. That’s good news for the courts, and for all of us.