News & Politics

Democrats Have a Better Option to Save the Supreme Court

Here’s an idea even more radical than court packing: End the Supreme Court as we know it—and borrow a Federalist Society-type proposal to do it.

Photo by Victoria Pickering (provided by Creative Commons license).

There’s a reason why interventions are so powerful: It can be transformative to see yourself through the eyes of your friends.

That’s what came to mind reading a headline that was published by a newspaper in Ireland this week: “Ginsburg’s Death Highlights Unhealthy Centrality of US Supreme Court.”

By this, the Irish headline-writers probably meant how Republicans have shattered centuries of constitutional norms to block the legitimately-appointed Merrick Garland, and how Democrats are so enraged they are now seriously considering packing the Supreme Court.

But America’s fixation with the Supreme Court is unhealthy—literally. On the verge of turning 88, Justice Ginsburg was willing to serve through pancreatic cancer rather than see her seat given over to an unfriendly President. Such a scenario, viewed as absurd in almost every other country, is so routine in American society that voters of all political stripes don’t blink an eye. Legal researchers have shown that justices are likelier to die when the sitting President is of the opposing party—a clear sign they are trying to “wait it out” until their favored President wins. That insight also partly explains the circumstances of the last justice who died in office, Antonin Scalia.

All this should tell us something important, and disturbing, about the Court’s role in American politics: It has become a twisted form of regency. Ask yourself: Should the death or resignation of a single, unelected jurist be the fuse that ignites a near-civil war?

Does the public death-watch and throne-guarding that attends the late rule of a sole octogenarian woman sound like the behavior of an advanced liberal democracy? Or does it sound more like the unhealthy cultural artifacts of a monarchy?

Instead of packing the Supreme Court, Democrats should reinvent it as an institution of radical fairness.

And just think: Is there any place in government, such as the Presidency, where you would allow someone on the verge of turning 90 to hold such vast power?

The United States stands alone when it comes to granting justices lifetime tenure; every major democracy on earth has rejected it. In fact, virtually all American states have rejected it, with 49 out of 50 states placing some limit on the tenure of their high court judges. America’s system for the Supreme Court is patently absurd—and it must end.

This, in a nutshell, is the spirit of a fascinating proposal, first published in 2005 by two law professors, Steven Calabresi and James Lindgren at Northwestern University, which offers a radical new vision for the Supreme Court. Their proposed idea—as opposed to court packing—holds the key for Democrats if they want any hope of reaching parity one day on the Supreme Court.

More importantly, it holds the key to deescalating Court confirmations entirely: Blow up the Supreme Court as we know it, and reinvent it as an institution of radical fairness.

The professors’ proposal is simple: Every sitting president gets exactly two Supreme Court appointments during each four-year term. Once confirmed, each appointee would serve for a single, nonrenewable 18-year term on the Supreme Court. Every two years, a new justice comes in, and an old justice goes out.

Just think: No more existential death-matches on live television. No more fantasies of political domination, or nightmares of political extinction. And no more scenarios in which Republicans privately recognize the catastrophe of electing a psychopath game-show host—but feel compelled to vote for one anyway, because of the once-in-a-lifetime prize of the Court. After all, there’s always two seats up for grabs in the next election.

This proposal has another big benefit if Democrats want to achieve a measure of bipartisanship: It’s lead author, Calabresi, is a renowned conservative thinker—one of the early founders of the Federalist Society, the ne plus ultra of conservative legal thought.

Now consider how different this looks from Democrats’ present course of action. At the moment, liberals are urging Chuck Schumer to pack the Court if Ginsburg’s replacement is seated. This countermeasure sounds retaliatory, but it would be better described as toothless: Joe Biden, along with establishment incumbents and other toss-up Senate candidates, have shown no appetite for following through on it. By their nature, threats can only function to the extent they are credibly perceived. So the Democrats’ quasi-threat of packing the Court is really no threat at all. It also adopts the bare-knuckle style that Democrats claim to deplore in Republicans, and would simply confirm to Red America that Democrats are no less craven and power-hungry than Republicans are.

Democrats need a threat they can levy credibly: one that achieves the desired retaliatory effect, but also complements their moral vision of a post-Trump society. Rather than pack the Court in a spirit of righteous vengeance, Democrats should threaten to reinvent it in a spirit of righteous fairness—then make good on that threat the moment they achieve power. And when they run into battle, they should hold up the Calabresi-Lindgren plan like the shield of Achilles.

Over the years there have been many ideas for reinventing the Court. But Calabresi and Lindgren’s proposal is built around a set of arguments that would meet broad approval with most Americans. Calabresi is an originalist, which means he views the original meaning of the Constitution as the interpretation that should preside when answering present-day questions. When the Framers imagined lifetime tenure, the professors write, they had a very different idea in mind: From 1789 to 1970, the average tenure of a justice was 14.9 years. Today, it’s skyrocketed to nearly 26 years—a “major problem,” write Calabresi and Lindgren, which has had “a number of alarming effects on our constitutional democracy.”

It’s time for both parties to relinquish their fantasy: the intoxicating possibility of a generation of power over an entire branch of government.

Some of the effects of lifetime tenure include the creeping problem of ageism—presidents are likelier to pass over more experienced judges and appoint someone in their forties—and the political agendas of justices who, like Scalia and Ginsburg, remain on the Court far too long while they await a new President, with some staying on obviously well past their mental prime. One analysis in 2000 suggested that half of the previous ten justices to leave office had entered mental “decrepitude.”

Crucially, longer tenures mean longer waits between confirmation hearings—and this time interval has increased dramatically since the 1940s. The public sense of rarity and pomp that accompanies every new Court vacancy serves to dramatically raise the political stakes, feeding the sense of existential drama that predictably sparks a partisan brawl.

But the authors’ bigger problem isn’t the drama of confirmation hearings; it’s that there are too few of them. As Calabresi and Lidgren argue, the confirmation process is the main umbilical cord that tethers an unelected judiciary to the democracy it serves. This problem, sometimes called “the counter-majoritarian difficulty,” is worsened when the Court goes on for more than a decade without a single vacancy—as happened in the period between 1994 and 2005. It is likely to happen again, now that the majority of the Court’s members are relatively young and in good health.

Exacerbating the problem of unfairness is the pure randomness of Court nominations. While Jimmy Carter didn’t see a single vacancy as president, Donald Trump is set to fill three. In an observation that is now prescient, the two professors note that there may come a time when “two, three or even four seats may open up with the space of a few years.” In such a case, “the party in power…will be able to make a disproportionate impact” on the Court. Calabresi and Lindgren are emphatic about the consequences: “The result is that the Court will no longer accurately reflect the country’s political values.”

All this, the authors argued, meant that the lack of frequent and regular turnover on the Court would become “a growing threat to the democratic legitimacy of the Supreme Court.” Writing in 2005, they had no idea how right they were.

Today, many believe that it’s our worsening polarization that has ushered us into an era of existential dread over the Court. But reading the Calabresi-Lindgren plan, you get the sense that this gets things exactly backward: It’s the inherent design of the Court—its roulette-randomness of vacancies, it’s growing power in American life, and above all, it’s promise of lifetime tenure—that lend themselves to a seductive elixir of quasi-monarchical power, which political parties simply can’t resist. For decades, both parties have nurtured a vision of the Great Fantasy: the chance to achieve a generation of power over an entire branch of government, divorced from any obligation to win elections.

Crucially, it’s both parties, and not just Republicans, who have bought into this mindset. That’s why Democratic activists can perceive only one form of retaliation—court packing—while seeming so blind to its enormous political cost. In addition to a paroxysmal backlash from conservatives (and the prospect that Republicans, too, might expand the court), Americans would still have to endure another generation of two parties dueling over the Great Fantasy.

What Democrats must understand is that the grave crisis posed by Ginsburg’s death is not just the amoral treachery of Mitch McConnell. It’s the fallacy of the Great Fantasy itself—the illusion that brings us to the brink of crisis, again and again—and the steep price we’ve all paid by allowing our political tribes to tear each other apart in its pursuit.

Calabresi and Lindgren fear the Court is veering toward ‘a gerontocracy, like the leadership cadre of the Chinese Communist Party.’

A far better alternative—politically, judicially, and morally—is to relinquish the fantasy entirely. In its place should be a routinized protocol of basic fairness. Calabresi and Lindgren propose a system of staggered 18-year terms for each justice, occurring in odd-numbered years in each presidential term. But any number of proposals might be a better approach. Some thinkers have proposed five-year terms. Others are more creative: In one 2018 paper, professors Daniel Epps and Ganesh Sitaraman propose a Supreme Court “lottery” (in which the Court would sit in panels selected at random from a pool of judges in the U.S. courts of appeals) and a so-called “balanced bench”—in which the Court would basically be composed equally of liberal and conservative justices.

How would this be achieved? With the Calabresi-Lindgren plan, life tenure for Supreme Court justices is spelled out explicitly in the Constitution, which is why Calabresi and Lindgren propose a constitutional amendment. But several thinkers have proposed a way to achieve similar reforms by way of federal law—just like court packing, which extends from Congress’s authority to regulate the judicial branch. One idea would allow the president to appoint nominees to the federal judiciary, then “select” them for an 18-year-term on the Supreme Court. This is not unlike how Supreme Court justices used to “ride circuit”—traveling the country to preside over lower court proceedings—only now in reverse. When their 18-year term expired, justices would be permitted to continue serving in the lower federal courts, satisfying the Constitution’s requirement for life tenure.

Would term-limits take effect immediately upon the sitting justices? Would the new regime be challenged, thus being decided before the Supreme Court itself? These are questions Democrats will have to contend with, and risks they will have to take. And if refashioning the Court in the name of fairness is found unconstitutional by an unfair Court, then Democrats have a much stronger justification for packing it with new justices, and only then as a last resort.

But starting with fairness is a far superior policy and message than what the Democrats are currently doing: nothing. Each president getting two Court appointments is a protocol of fairness that every American can understand. And it will free us all from the insanity of a national melee that comes with the passing of each justice.

The Framers would be aghast at the Court’s “‘prolonged quasi-regal personal dominion,'” write Calabresi and Lindgren. They warn that the Court is on a road to “a gerontocracy, like the leadership cadre of the Chinese Communist Party.”

They are right. Democrats have already shown they are serious about reforming democracy, introducing legislation like H.R. 1, and statehood for the District of Columbia. This week, they introduced a new round of legislation meant to correct the myriad abuses of presidential authority in the Trump era.

As long as Democrats are pushing major reforms to democracy, the imperative to reinvent the Supreme Court should be at the top of the list. Liberals should see the truth in the diagnosis offered by the co-founder of the Federalist Society, and then use it to persuade the American people: “It is time to recognize that the system is definitely broken.”

Benjamin Wofford
Staff Writer

Benjamin Wofford is a contributing editor at Washingtonian.