An ideal solution ought to have neutral political consequences in the short term and temper partisan passions in the longer term to strengthen the institution’s legitimacy before the public. Perhaps most importantly, as Supreme Court Commissioner Adam White put it in his statement about the commission’s work, any solution should encourage ongoing “self-reforms, undertaken with a spirit of self-restraint.” On the practical level, any reform proposal needs to be doable through legislation, not a hard-to-achieve constitutional amendment.
Our plan, similar to a concept suggested by University of Chicago law professor Daniel Hemel and relegated to a footnote in the commission’s report, achieves these aims and deserves greater attention: Allow the number of justices to float.
As many have pointed out during this ongoing reform debate, the Constitution says nothing about the size of the Supreme Court. The number of justices on the court was originally set at six in 1789 and rose to as many as 10 in 1863 before finally settling on nine justices in 1869; all of these changes were done through acts of Congress. While some use that as an argument to support increasing its size (conveniently just large enough to tip the ideological balance in one’s preferred direction), a better approach is to cast aside the notion of a defined court size altogether.
Unlike other proposals, ours also hits on the underlying source of much of what erodes the court’s legitimacy: the nomination and confirmation process itself.
Whether you begin the story with the 1987 confirmation conflagration of Robert Bork, the hearings that never came in 2016 for Merrick Garland, or the events that ensued after Brett Kavanaugh was accused of sexual assault in 2018, the evidence is clear. These Senate confirmation battles dramatically alter perceptions of the court in predictably ideological and polarizing ways.
Whenever the norm erosion began and whoever’s to blame, the destabilizing politicization of the Supreme Court has reached a fever pitch. First the Senate’s 60-vote threshold for lower court nominees met its demise, followed a few years later by the end of the filibuster for Supreme Court nominees. After declaring 10 months before an election too close to confirm a new justice when the president was of the opposite party, the Republican-controlled Senate was happy to confirm Justice Amy Coney Barrett with less than 10 weeks to go before the 2020 presidential election. Now, liberal activists are loudly pressuring Justice Stephen Breyer to retire so that Biden can appoint a successor before the Senate has the chance to change hands in 2022.
Each of these episodes were driven by individuals outside of the court itself; the justices themselves had no control over the manner with which these actors treated the court, but the result directly undermined its standing.
The Supreme Court’s institutional legitimacy relies entirely on the respect it receives from the other branches of government and the public at large — its reservoir of goodwill, which has been stockpiled over the last 232 years. This goodwill has allowed the court to survive the most contentious decisions, but the recent prolonged political jostling by the Senate has moved the court to the brink of an institutional crisis.
It is certainly true that part of what has fueled the plummeting public standing of the court is its own rulings, but few structural reform proposals can hope to alter decisions themselves. The best hope is to create incentive structures that reflect the Madisonian ideals of ambition countering ambition within the government while dulling the shock that events outside the court’s control thrust upon it.
Here’s how our proposal would work. Each president would get to appoint one (or perhaps two, more on that in a minute) justice at some point in their first term. The beginning of the second year seems like a logical moment; it would be after they have had a stab at their principal legislative agenda and before any midterm referendums. If they get reelected, they would get to appoint another justice (or two) in their second term.
When vacancies arise by death or retirement, they would not (directly) be filled. The court might, therefore, have 10, 11, 12 or 13 justices, or it might have seven, eight, or nine. What this scenario would not have is the opportunity for one president to get to make more nominations than another, nor the opportunity for a justice to time their retirement to maximize the chances of an ideologically compatible successor, nor the opportunity for the Senate to hold open a vacancy until the next election to place such an explicit partisan referendum on the court.
For the justices, it would free them to retire when they want to, or to choose not to retire at all, allowing them to serve for as long as they feel they are contributing to the court. If the justices themselves feel strongly that a particular size of the court is appropriate, they would be free to establish norms — formal or informal — about retirement age, with senior justices retiring when the court reaches a certain size or retiring in pairs across the ideological spectrum. If the court is as nonpartisan as Justices Samuel Alito, Barrett, Breyer and Clarence Thomas have recently made headlines for declaring, it would give them an opportunity for their actions to reflect their words.
For presidents, it would create predictability and a sense of fairness. One frequent criticism of establishing term limits is that they make judicial appointments too explicit a prize of winning the presidency. Could a similar critique be made of our proposal? Certainly — but that dynamic is just as present in the current system, where vacancies arise either randomly or strategically, as it would be in one where they arise predictably and equitably.
For the public, it would channel passions about judicial appointments into a predictable cycle where the stakes are consistent from election to election. More importantly, both practically and symbolically, it would reflect the idea that the court — and each of its seats — belongs to the citizens of our democracy, not to any particular justice. Rather than fill Justice Antonin Scalia’s seat or Justice Ruth Bader Ginsburg’s seat, we would be filling our seats in each new presidential administration.
As for a few more practical matters, this proposal could be implemented through legislation in Congress and wouldn’t require a constitutional amendment. It is also true that, under this plan, the court would be as likely as not to have an even number of seats rather than an odd one. This might encourage more strategic maneuvering to build broader consensus for narrower decisions, and it might leave the Supreme Court occasionally deadlocked, thus leaving a lower court’s ruling in place. Neither seems likely to have a delegitimizing effect on the court broadly, and both might actually have modest, positive effects. It is true that nothing about this proposal would directly change the current incentives to nominate young judges to maximize the length of their tenure on the court. But eliminating the need to strategically time retirements might make it slightly easier for presidents to nominate more “professionally middle-aged” candidates with more diverse professional experiences to the court. At minimum, it would do nothing to exacerbate the current trend toward younger nominees.
The question remains whether a president should get to pick one nominee or two. If the former, the size of the court would seem likely to grow inexorably smaller. Only one justice has ever served 36 years (the replacement rate for a nine-justice court with one appointment every four years), and while Justice Thomas seems likely to be the second, the average tenure probably will never exceed three decades. If the latter, the size of the court would, for a time, probably exceed nine unless justices started retiring at younger ages. Having two vacancies to fill at once might also encourage presidents to nominate at least one less ideologically strident candidate to help increase the likelihood of Senate confirmation, thus potentially filling out a more ideologically balanced court across the spectrum.
On our current trajectory, the Supreme Court is hurtling toward a continued cliff in the public’s confidence, with the court seen as a starkly partisan actor.
Increasingly, Democrats are awakening to what Republicans have long known: judicial appointments can be a powerful mobilizing factor at the grassroots level. On its own, that people vote based on the types of judges they would like appointed to the bench is not a problem; after all, we are an electoral democracy. But when the emergence of those vacancies is random or, worse yet, appears to be manipulated for ideological purposes by judges or politicians, the Flight 93 mentality that each election could have existential, generational consequences for the balance of the court is ever more pronounced (and not altogether wrong: that Donald Trump filled three seats in four years after each of his three predecessors filled only two seats in eight years was, well, inconsistent).
Fundamentally, no reform proposal can “solve the problem” of the court’s legitimacy. All we can do is create institutions that incentivize self-restraint, reciprocity and ambition colliding with ambition consistent with our long-running Madisonian ideals. Is there any guarantee a Senate of the opposite party would not hold up a president’s nominee after our proposal was implemented? No. But rather than our current system, where that outcome is coupled with uncertainty as to when the next vacancy might arise, this approach would let everyone know exactly when the next decision point arises and allow people to vote accordingly with the stakes clear.
In Federalist No. 10, James Madison famously advanced the argument that flourishing factions would counteract one another, resulting in moderate policy founded on debate and compromise. But today’s partisan politics have reached a point unimagined by our constitutional framers. We see very little substantive debate and even less compromise, and this discord has now enveloped the Supreme Court.
Our proposed solution honors founding-era ideals by ensuring that justices remain insulated from political retaliation — a Federalist imperative — while making nominations to the court foreseeable, regular events — an Antifederalist imperative. Perhaps most crucial of all, this setup allows voters to make an informed decision at the ballot box while reducing the incentive for senators to treat the court as just another political springboard in their pursuit of reelection.