The future of the Supreme Court: What to expect from Democrats
EVA VITANOVEC: The confirmation of Judge Amy Coney Barrett to the Supreme Court on Monday further solidifies the court’s conservative majority and brings to light structural problems within the confirmation process itself.
The Democrats – for a while now – have been fighting a losing battle when it comes to Supreme Court nominations, starting with Mitch McConnell’s Senate under the Obama Administration blocking the confirmation of the President’s Supreme Court picks. With each failed attempt to place a liberal justice on the court comes talk of a possible revision of the confirmation process, and, by extension, the body of the Supreme Court and what shapes it could take. Suppose the election this Tuesday goes well for the Democrats. In that case, progressive court reform could move out of the realm of political theory and take its place behind the bench – maybe on the surface looking like a tit-for-tat game with Republicans, but also addressing real concerns that citizens have about how politicized the highest court in the land has become.
For followers of the 2020 Democratic Primary, this issue was readily brought to the forefront of people’s minds not by the recent nomination and confirmation of Justice Barrett, but by a former South Bend mayor whose somewhat surprising push for progressive court reform help delineate him from a crowded field of candidates – two of whom are at the top of the Democratic ticket this election. Calling for structural reforms that would swell the court size to 15, have 10 of the justices be equally split ideologically, and the remaining five chosen by the first 10, issues of constitutionality and even the nature of having politically-identified judges are undoubtedly called into question. Nonetheless, for many Democrats, the rushed confirmation of Justice Barrett was the last proverbial straw for subverting the traditions of good governance. A change is indeed overdue.
The demand for modification begs the question: what kind of changes are we likely to see? The theory outlined by 2020 Democratic hopeful Pete Buttigieg stems from a paper by Dainel Epps and Ganesh Sitaraman, published in the Yale Law Journal in 2019. They sidestep the mainstream academic calls for term limits and court-packing and instead focus on two new strategies: the Lottery system and the Balanced Bench. The former plan would have the nice justices hearing cases on the Supreme Court also be first and foremost members of the Appellate Court. All members of the Appellate Court would, in theory, eventually serve on the Supreme Court, with no more than five justices on the panel of nine at any time having been appointed by one president. This qualifier helps balance the ideology of every new panel – a pressing concern and the primary objective, more or less, behind every form of court restructuring. The authors’ other proposal – the Balanced Bench – is essentially the plan Buttigieg laid out in the primary. 10 justices – five Democrat and five Republican – who unanimously, or, with a supermajority, decide on the remaining five justices, who are chosen two years before they take the bench, to complete the 15 justice court. If the justices fail to choose their colleagues, the adjudication process would be halted, and the court would not hear cases.
Much has already been written about the relatively easy-to-understand proposal of court-packing – a Congress and an Excessive branch of the same party working in tandem to increase the number of justices allowed to serve on the bench and subsequently appointing enough justices of one interpretive style to secure a majority. Implementing term-limits has also become a widely-circulated restructuring theory, given that since the court’s inception justices have been serving exponentially longer terms. One important reason why these proposals have been considered more mainstream is, keeping within their core constitutive ideas, the inherent constitutionality of court-packing and term-limits. With these two proposals, the president is still the one appointing the justices. With suggestions such as the Supreme Court Lottery and the Balanced Bench, the passage of a constitutional amendment is needed to secure the appointment power of a body other than the Executive. Granted, this is somewhat of a more daunting task for a polarized country but never say never.
The influence of American Exceptionalism also heeds some rightly-deserved scrutiny within this larger conversation: American institutions are not sacrosanct just because they are American. In the U.K, vacancies on their 12 justice Supreme Court are filled by a recommendation chosen by a selection panel – composed of a representative from each one of the UK's constitutive nations’ own judicial selection commissions and a senior member of the current Supreme Court. The nomination is sent to the Lord Chancellor for approval, which does entail some party politics, but with one catch – the Lord Chancellor only has the use of one veto while in office. It should also be noted that a form of this kind of process, called merit selection, has already taken root in some lower U.S courts, the most notably being the Missouri Supreme Court.
With Vice President Biden’s non-so-skilled circumlocution in the first presidential debate when asked if he would pack the court in favor of the liberals if elected president, the likeness that serious court reform will follow a change in Executive power is certain. With this comes the necessity for both supporters and opposers of different reform measures to combat the spread of misinformation. The impacts of various structural revisions must be taken seriously if the court is ever to live up to its designation as an apolitical body, a designation that currently is hanging on by a thread.
Eva Vitanovec is a sophomore in the College from Chicago, IL. Studying Government, she enjoys reporting on exciting happenings in the political world for On the Record and staying involved with GU Politics.