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Restructuring the United States Supreme Court

Published onJan 08, 2024
Restructuring the United States Supreme Court
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Restructuring the United States Supreme Court

Introduction:

The United States Supreme Court and the judicial appointments to the Court have led to some of the most hyper-partisan showdowns in the Senates history. With the appointment of Amy Coney Barrett to the Supreme Court, it has become clear that the Court has become a political pawn. Where did this process go wrong? What actors are at play that seek to unequivocally be the power behind the Court? Followed by; how do we fix it? These are the questions that have become especially prominent with the passing of the honorable Justice Ruth Bader Ginsburg. The legitimacy, integrity and respect of the Court is at play within the next decade1. The Courts most valuable asset is one of integrity- which is the reason they can have the power with the rulings they hand down. It would be dangerous to lose the Court in the midst of our hyper-partisan era. On the contrary, it would cause great detriment to our framework if the Court garnered too much power with a one-sided ideological balance that could last for many years to come. Moreover, the Supreme Court becoming a political football to be tossed between parties is a dangerous use of the Court and the effects will be felt for generations to come. We cannot cede the responsibility to fix the cracks within the marble.

In order to establish a ripeness to begin the dialogue of restructuring the Court, it was important to ask; What is the public knowledge and opinion surrounding the United States Supreme Court? In a survey conducted2, 51.2% of respondents did not know what the nomination process was for a justice; 48.8% of the respondents did know. In another survey3, 80% of respondents did not know what the process was to nominate a Supreme Court justice whereas 20% did. There is a clear gap in the public knowledge of how the Court functions and that is used to an advantage by other entities within the nomination system. However, within those two surveys conducted, respondents were asked if they believe the Court has become too politicized. In survey 14, the respondents were asked if they thought the Supreme Court had become too politicized; 88.3% of respondents said yes compared to the 11.7% who said no. In the other survey5 conducted, when asked if the respondent thought the Supreme Court had become too politized/used as a political pawn; 89% of respondents said yes, whereas 11% said no. For people to not be proficient in their knowledge of the Court but to know that it is being used as a political pawn shows how detrimental it is that we restructure the Court and the other actors involved.

  1. The Presidency:

The President of the United States has long served as the driving force of Supreme Court nominations. The Constitution grants this right to the President with the advice and consent of the United States Senate6. Presidents have always appointed justices that appease their political affiliation, but it was not until Ronald Reagan took office that we really began to see a shift towards extreme ideological perspectives being appointed to the Supreme Court7. Ronald Reagan started the trend of Republican presidents appointing justices who are consistently more conservative. Contrastingly, Democrat presidents shifted towards appointing predominately more liberal justices to the Supreme Court8. This became a problem when American politics began shifting primarily towards hyper-partisanship9. Meaning, each party has developed extremist branches that allot for huge shifts in the party dynamic and thus, the presidency10. Additionally, when a President chooses to pick an either ideologically conservative or liberal justice- it leads to an uproar from not only the Senate but the American people11. No evidence of this could be truer than the death of Justice Ruth Bader Ginsburg that resulted in the appointment of Amy Coney Barrett. Massive protests erupted throughout the United States as the public refuted the nomination of Amy Coney Barrett. In a study I conducted12, 85.6% of the respondents stated that they opposed the nomination of Amy Coney Barrett to the United States Supreme Court. In addition to this study, another poll from Gallup13 showed that 46% of the American public did not approve of Amy Coney Barrett being nominated. President Donald Trump notoriously nominated three justices to the United States Supreme Court- two of which boasted some major opposition along ideological lines14. This is another crucial issue when it comes to the nomination process due to the fact that when the President chooses a nominee that is ideologically extreme; it leads to massive eruptions in the Senate. This has been an issue in recent years with hand curated lists from outside sources for the President to choose from. The problem circulating these appointments that exacerbate our hyper-partisanship as of late falls in the hands of The Federalist Society15.

  1. The Federalist Society:

The nomination of Justice Brett Kavanaugh, in 2018, led to one of the most highly partisan Senate battles in the history of judicial nominations16. With not only a highly-originalist judicial philosophy and a token of faith from the Federalist Society; Kavanaugh faced sexual assault allegations that brought even more heat to his confirmation hearings. There is something to be said when even with testimony from the victim, the agenda to appoint a Justice is so paramount to either party- that concerns are ignored. This behavior leads to not only a mistrust in the process but degrades the moral fibers of the Court. This is not to say that there is anything wrong with the Federalist Society; the problem lies in the fact that a group is directly handing the President of the United States a curated list of potential justices17 that appease their core values- which happen to be conservative. As there is no liberal equivalent of such great power, the core of this process subsides in the Federalist Society. There is no fault in the Freedom of Speech18 surrounding the option for the President to seek the advice of an outside group. However, in a bid to deescalate party-line tensions in the Senate, it is pertinent that we start at the Presidents nominee selection and the influences surrounding them.

  1. Non-Partisan Judicial Nomination Committee Resolution:

One of the proposals being presented would be to establish a non-partisan nomination commission. This would establish a committee consisting of the Chief Justice of the Supreme Court, three federal appellate judges, three professors or lawyers picked by the ABA19 and a rotating member of the current Presidential cabinet. The question posed is, why? First, let’s start with the Chief Justice. The Chief Justice- in this case, John Roberts- has a profound interest in keeping the integrity of the Court intact. Therefore, it is unlikely the Chief Justice would choose to nominate ideologically extreme justices or justices with less than pristine pasts20. In regard to the three federal appellate judges and the lawyers and/or professors; these members would serve on a rotating basis to prevent bias or motivation from special interest groups21 from encroaching on the process. They would be chosen by the American Bar Association and would rank on a sliding scale of moderate-conservative to moderate-liberal in order to ensure that each side is represented22. This plan takes after the Missouri plan in many regards, more so drawing more similarities to the judiciary plan that the state of California uses. By having more moderate judges choosing other moderate judges we can presume that this could cool the fire surrounding judicial hearings in the Senate by a couple degrees. This is a possible implementation because it does not require a constitutional amendment to implement. The President would not be forced to pick from the list of nominees curated by the non-partisan judicial nomination committee. But, the idea behind that is that the President will respect the Chief Justice and the respective committee members enough to appoint a judge from the list in order to ensure that there will be a smoother nomination process in the Senate. Which, to the American people, makes it appear the process is just. Additionally, there will likely not be an uproar from the public if the nominees are not ideologically extreme in terms of the potential justice’s interpretation and reading of the Constitution. This is not to say there will be errors and bias along the way; but it is surely a more conducive process that would take away some of the heat from confirmation battles in the United States Senate.

  1. The Senate:

In a problematic system of judicial nominations, the Senate is the backbone of the monster. With the power that the Senate Majority Leader has, Mitch McConnell. The power he has is used negatively to bring out more hyper-partisanship. In 2012, Mitch McConnell blocked a Supreme Court nomination from President Barack Obama for months. McConnell’s rationale being that there was an unofficial Senate rule to not implement a new Supreme Court justice in an election year23. However, in 2020- an election year- Mitch McConnell and Senate Republicans pushed through a nomination to replace the late Justice Ruth Bader Ginsburg just a mere two weeks before Election Day24. Additionally, in 2017, the Republican-controlled Senate voted to reduce the vote for confirming nominees to the Supreme Court from 60 to 5125. The lowering of this threshold of votes in order to push through nominees should not be allowed. Especially, when it comes to appointing justices to the highest court in the country who will be serving life-time terms. Due to the nature of the Court- which is rooted in resolving national crises- it is imperative that the only representation of the population, the Senate, do its due diligence to appoint the right people. Recently, with the confirmation of Justice Brett Kavanaugh and Justice Amy Coney Barrett- we saw some of the closest votes for a Supreme Court justice in our history. With Justice Kavanaugh a mere threshold was passed at 50-48 for his nomination26. Had a super-majority vote been intact, Kavanaugh would not be a Supreme Court justice. Furthermore, Amy Coney Barret received 52-48 confirmation vote27. Once again, had a super-majority been intact, Barrett would not be a Supreme Court justice. It is unjust to not invoke a super-majority vote for any Supreme Court nominee. The Senate has started to care more about who has the most seats on the Supreme Court (ideologically speaking to party lines, of course) than they have vetting these potential justices and keeping the process clean and precise. When we look back to the nomination of Justice Ruth Bader Ginsburg, she was confirmed 96-328. This is a massive difference between the last two nominations that were pushed through the Senate. Granted, we have to take into account that hyper-partisanship plays a stronger role now that it did in the 1990’s. However, the Senate has respectively advised around 120 nominations in the history of the United States and until Mitch McConnell took power as majority leader in the Senate- never has there not been a super-majority required to confirm an associate justice to the Supreme Court of the United States29. Going back to another major problem first presented in this section, Mitch McConnell blocked a Supreme Court nomination for months in 2016 under the Obama administration. After the death of Justice Antonin Scalia, McConnell claimed that there was an unspoken rule that there are no Supreme Court nominations during an election year. McConnell states that the American people should have a say in the court’s direction30. He also went on to say that he received great pleasure from looking President Obama in the eyes and saying he would not be allowing him to fill the Supreme Court vacancy. When we look contextually at the Constitution it explicitly states that the Senate is to provide advice and consent. It does not say that the Senate Majority leader has the right to speak for an entire country and block a Supreme Court nominee. The underlying problem within the Senate is its leader, Mitch McConnell31. McConnell has been able to establish a veritable assembly line for judicial confirmations because he disarmed the Democratic minority by changing the rules of the Senate. He first eliminated the use of extended debate — or filibuster — to delay or defeat nominees to the Supreme Court32. But, in order to strip the excessive power away that he has garnered, we have to strategically put rules and regulations in place for the Senate to ensure that this type of situation does not happen again- no matter who the Majority leader is.

  1. Fixing the Senate

First and foremost, changing the vote for nominating a Supreme Court justice back to the super-majority threshold. Additionally, there need to be protections put in place to ensure that a majority leader cannot take command with the nuclear option33 and strip power from the minority. This type of governing leads to even more divides along party lines and makes for distrust across the political aisle. When that distrust exists, it creates animosity and does not allow for the Senate to respectively do their jobs by working together. Moreover, in order to subsidize power across the Senate when it comes to the judiciary- it is of the essence that we shift some power to the Senate Judiciary Committee. Specifically, the Chair of the Committee and the Minority Chair of the Judiciary Committee. So, in the instance that another Merrick Garland situation arises- the Senate Judiciary Committee has the power to call hearings on a judicial nominee if they feel they should. Shifting some power to the Judiciary Committee would allot for some majority power to be shifted to the minority as well. By changing the power dynamics in the Senate, this should take some pressure off of the tensions in the Senate by giving protections back to the minority. Finally, reimplementing the post-cloture debate and filibuster rules will also bring back some minority power. The minority has the right to filibuster to their hearts content whether the majority agrees with it or not. Shutting down a decorum for debate is not at all what was intended for the Senate which is supposed to be the representatives of the states and consequentially the people as a whole. The founding fathers certainly did not intend34 for a Senator from a small state, such as Kentucky, to not only make decisions for the whole of the United States but arguably possess more power than the President and the Speaker of the House.

  1. Restructuring the Supreme Court

The Court itself is in crisis35 because of the actions of Presidents and Senators past. The crisis consists of the integrity of the Court being a major problem that undermines the legitimacy of the Court36. The are several steps to restructuring the Supreme Court in its capacity to help make it less of a political pawn. Some options that will be presented consist of; redistributing the number of justices on the Court and setting term limits on the Court.

6a. Term Limits

Let’s first look at the conceptualization of implementing term limits. There are no term limits or lack thereof set forth by the Constitution in regard to the Supreme Court. In fact, when the Constitution was written the life expectancy was exponentially lower than what it is now. The average life expectancy has increased from roughly 40 years in the late 18th century to almost 79 years today37. This is a massive increase especially since some of the youngest Supreme Court justices have been nominated to the Court in recent years38. Justice Gorsuch is 53 years old, Justice Kavanaugh is 55 years old and Justice Barrett is 48 years old. These justices themselves could be on the Supreme Court for the next 25-30 years. With a shifting political climate and a change of ideologies, it is pertinent that we establish term limits on justices. These term limits should be in 16-year terms, which in normal circumstances is two presidencies. These term limits would begin one year from implementation and would allot for more turnover on the Supreme Court. The idea behind term limits is not just to refresh the Supreme Court by keeping up with the times and the ever-changing Political landscape of the United States; but to make sure we give each party a chance at an equal number of nominees ever so often. This will likely lead to less tense confirmation battles in the Senate because there will be a higher turnover of justices throughout the years. There have already been proposals to enact term limits, with the most backed proposal by a variety of law professors that drew up four proposals for the Judiciary Act of 2009. This Act came after Chief Justice Roberts 2008 annual report to Congress in which he raised an important question about the compensation and support of the federal judiciary39. The letter states that from time to time, the other branches of the federal government need to reconsider how the judicial branch has evolved and adapt it to changed circumstances40. This could not be truer as we not only deal with the life expectancy aspect but also the increase of the United States population and the urge to keep up with the shift of American Politics.

6b. Redistribution of Justices

In an effort to not create an uproar of opposition, the term “packing” should be changed to redistribution. When people hear the term “packing” they already have a negative association that stems from FDR’s court packing proposal.  Roosevelt’s motive in his plan was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation41. In truth, it makes sense why there is this negative connotation to the idea of adding justices to the Court. However, this is where redistribution comes in. By redistributing the number of justices to 13, we see equal representation for all the districts for the U.S. Courts of Appeals. This number is still a small enough number for general consensus but large enough to give more representation to the people. Around the time the first Supreme Court heard a case, the population of the United States was 3,929,21442. Now, our population is over 328 million people. As the Supreme Court is handling cases that concern not only the healthcare of millions of people but also human rights issues; it is time to add more justices to the Court that can open the horizons for representation.

6c. Expanding the Judicial Conduct Act

The Code of Conduct for United States Judges advises judges that they “must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”43 The Judicial Conference of the United States comprises the 13 chief circuit judges, 12 district judges elected by the circuit and district judges in each regional circuit, and the chief judge of the Court of International Trade44. However, the system does not hold checks on the Supreme Court. Expanding the Judicial Conduct Act to acknowledge and hold checks on the Supreme Court is important. Alexander Hamilton famously stated in Federalist No. 7845 that the judiciary was the weakest branch of government. As the Court gains more power through politics, this statement needs to be reevaluated and checks need to be put in place to ensure that the judiciary does indeed remain the weakest branch of the federal government. When placed under the Judicial Conduct Act, the justices would have an agent to hold them accountable for rightfully recusing themselves from cases they should be recused from46. It could also serve as an agent for any misconduct that was not investigated during Senate confirmation hearings47. These check on the Supreme Court would lead to more integrity in the Court as there is an accountability agent keeping a watchful eye.

  1. Conclusion:

There is a reluctance to try to appease the appetite to change anything in regard to the Supreme Court. Our institutions were not built to readily withstand a population increase that we have witnessed in the past century. These institutions were meant to be adapted and reconstructed; hence why the founding fathers kept these institutions relatively vague in their original framework. Political scientists alike have established that there is a problem with the Supreme Court as we know it48; but the Supreme Court is not the system that needs work. In order to make the Supreme Court less politicized, every branch of the federal government needs some implementation of the plans proposed in this paper49. Otherwise, we face a crisis of losing the integrity and legitimacy of the Court- which are the Courts superpowers. If the Court loses those two characteristics, we potentially face the probability of a judiciary crisis.

References

Barry J. McMillion, Congressional Research Service, Supreme Court Appointment Process: Debate and Confirmation Vote, (September 7, 2018), https://fas.org/sgp/crs/misc/R44234.pdf

Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006)

Charles M. Cameron, Cody Gray, Jonathan P. Kastellec & Jee-Kwang Park, From Textbook Pluralism to Modern Hyper-Pluralism: Interest Groups and Supreme Court Nominations, 1930-2017(2018)

Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (2007)

David Paul Kuhn, The Incredible Polarization and Politicization of the Supreme Court (June 29, 2012), https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/

David Orentlicher, Abstract, Politics and the Supreme Court: The Need for Ideological Balance, 29 U. Pitt. L. Rev. 411-35 (2018)

Denis Steven Rutkis, Congressional Research Service, Supreme Court Appointment Process: The Roles of the President, Judiciary Committee, and Senate (February 19, 2010), https://fas.org/sgp/crs/olmisc/RL31989.pdf

Frederick A. O. Schwarz, Jr., Saving the Supreme Court (Sept. 19, 2020), https://www.brennancenter.org/our-work/analysis-opinion/saving-supreme-court

Ganesh Sitaraman and Daniel Epps, How to Save the Supreme Court, 129 Yale Law Journal. 148 (2019) https://scholarship.law.vanderbilt.edu/faculty-publications/1129

The Supreme Court and Its Workload Crisis, Hearing on H.R. 4149 and H.R. 4238 Before the Subcommittee on the Courts, Civil Liberties and the Administration of Justice of the Committee of the Judiciary, 99th Congress (1986)

Henry Paul Monaghan, The Confirmation Process: Law or Politics? 101, No.6 Harv. L. Rev. 1202-12 (1988)

John Massaro, Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations (1990)

Laura Zaccari, Judicial Elections: Recent Developments, Historical Perspective, and Continued Viability, Summer  Rich. J. o fL. & Pub. Int. 138-56 (2004)

Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 Wm. & Mary Bill Rts. J. 7-36

Mark E. Owens , Changing Senate Norms: Judicial Confirmations in a Nuclear Age (2018)

Nina Totenberg, The Confirmation Process and the Public: To Know or Not to Know, 101, No.6 Harv. L. Rev. 213-1229 (1988)

Paul Bovend’Eert, Recruitment and Appointment of Judges and Justices in Europe and the US, 5 Nederlandse Vereniging voor Rechtspraak (2018)

Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 Harv. L. Rev. 1146-1163 (1988)

Richard Davis, Supreme Democracy : The End of Elitism in Supreme Court Nominations (2017)

Russell Wheeler, Should We Restructure the Supreme Court?, https://www.brookings.edu/policy2020/votervital/should-we-restructure-the-supreme-court/ (last updated Sept. 22, 2020)

Steven G. Calabresi & James Lindgren, TERM LIMITS FOR THE SUPREME COURT: Life Tenure Reconsidered (2005)

Stephen Carter, The Confirmation Mess, 101. No.6 Harv. L. Rev. 1185

Comments
1
Robert Bachrach:

Here are some related considerations which I originally posted on my blog in 2022 and recently reposted on substack
Restructuring the United States Supreme Court