With Judge Amy Coney Barrett’s confirmation to the Supreme Court all but certain, Democrats are toying with ways to reform the court.
Former Vice President Joe Biden plans to suggest a bipartisan commission to study the options. Unfortunately, the proposals all have serious flaws. Either their constitutionality is doubtful or they would undercut the tremendously valuable role that the court plays in protecting liberty and equality.
The most dire of these proposals is court packing. I’ve written before that any attempt to expand the court is likely to fail, and for good reason.
But what about more sensible ideas, like term limits for justices? Logically, this would be a huge improvement over the current system. Instead of the calendar of replacement being driven by the randomness of justices’ aging processes, illnesses and retirement decisions, we would have a relatively regular and rational schedule. What we would lose in the occasionally brilliant long-serving justice we would gain in commonsense planning. And it would no longer be necessary to appoint justices at younger and younger ages. A healthy 60-year-old would be just fine.
The problem is that the Constitution says that the justices serve “during good behavior.” It’s pretty clear that this didn’t and doesn’t mean that they should serve based on term limits, but indefinitely. That’s why the tradition in the U.S. has long considered such term limits unconstitutional. There are some creative arguments to try to get around this; but in the end, the Supreme Court would have to rule on whether it would be constitutional to create new judgeships with term limits attached. I seriously doubt the court would uphold term limits for new justices.
Another approach would be for Congress to pass laws with riders that specifically say that the Supreme Court may not weigh in on their constitutionality. In the past, it was mostly conservatives who advocated for such laws, which are known as “jurisdiction-stripping” laws because they take away courts’ jurisdiction. Conservatives used to be worried about liberal justices striking down unconstitutional provisions in their laws; now, with the court’s changing balance, it’s liberals who are concerned.
There is no definitive answer to whether jurisdiction-stripping is constitutional. The text of the Constitution appears to allow it in certain circumstances. But some constitutional liberals have maintained that the Supreme Court must retain an inherent authority to review the constitutionality of government action.
You can see why: If Congress could exempt laws from judicial review, they might make a habit of it. The law against flag-burning, for example, would probably have been passed with a provision saying the court couldn’t strike it down. If you believe that Republicans are more likely than Democrats to adopt unconstitutional legislation in the future, then you should be highly skeptical of Democrats establishing the precedent of jurisdiction-stripping.
Moreover, the constitutionality of jurisdiction-stripping would ultimately be decided by, you guessed it, the Supreme Court. It’s easy to picture the justices striking down the whole idea that they would not be able to strike down laws they found unconstitutional.
Some have proposed introducing legislation that would require the Supreme Court to decide certain cases not by a majority but by a supermajority, requiring, say, six or seven votes rather than five. I seriously doubt this would pass constitutional muster. Common law courts traditionally decided cases according to what a majority of the judges or justices thought. It seems reasonable to argue that the Supreme Court’s rules for how to decide cases should be a matter for the court, not Congress. There is even an obscure 1871 case, U.S. v. Klein, in which the Supreme Court struck down a law passed by Congress on the theory that the law was infringing on the court’s prerogative by imposing a rule of decision that dictated outcomes.
There are some other ideas out there. We could pick Supreme Court justices by lottery. We could ask a group of justices – with an equal number appointed by Democrats and Republicans – to in turn choose other justices, who would serve for limited terms. These are creative ideas. Without a constitutional amendment, however, they’re going nowhere.
Behind all of these questions lurks a deeper one: Does the Supreme Court really need reform? It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the past 30 years gave us gay rights, same-sex marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose.
In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans.
Noah Feldman is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
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