The Supreme Court is increasingly placing itself at the center of our most critical and divisive policy debates, removing any doubt that the third branch is as political as the other two. This is a problem in need of fixing.
Fortunately, our quadrennial exercise of throwing ideas at a wall to see what sticks—i.e., presidential primaries—now prominently features proposals for reforming the high court, from retention elections to adding justices to reducing the length of tenure.
Although these plans tend to come from the party out of power (Republicans in 2016, much of the Democratic field today), what unites them is their goal of lessening the political appearance of an overzealous court and re-establishing constitutional balance.
At the same time, these proposals raise important questions: could any of them be implemented by a simple statute, since amending our founding document is nearly impossible? And if so, would such a change be sensible?
The 5-5-5 Plan, Court Packing
Let’s start with what’s often called the 5-5-5 Plan, made popular on the trail this year, where the Supreme Court would comprise five Democratic-appointed justices, five Republican-appointed justices and five justices chosen by the previous 10 to create a 15-member body. Article II states that the power to appoint justices resides with the president, so unless we amend the Constitution, or make the first 10 justices president in addition to justice, 5-5-5 would not pass constitutional muster.
This proposal seems to operate both outside of time and stuck in this particular moment—how do six justices get added all at once, how do future vacancies get filled and who’s to say that today’s Republican-Democrat dichotomy will exist forever?
Court packing is another prevalent idea. The Constitution makes no mention of the high court’s size, and the bench has been expanded and contracted via legislation throughout our history.
Rather than fix the politicization of the third branch, this idea doubles down on that problem: were Democrats to take power after next year’s election and add two to four justices, there would be no stopping Republicans from responding in kind when they inevitably return to power, and in short order the Supreme Court would be seen as less of a court and more of a super-legislature.
Then there’s the case for term limits. The most common proposal would be to move from life tenure to a single, 18-year term for future justices, staggered so that each president appoints two jurists per term. By itself, this proposal would seem to have some constitutional challenges: Article III provides that all federal judges and justices “hold their offices during good behavior,” and “good behavior” doesn’t have an expiration date.
Some scholars have proposed a workaround that would keep justices on the bench, as fully compensated senior justices, after 18 years are up: they could sit on lower federal courts, as several retired justices recently have, and would be available to fill in on the high court following a death, retirement or removal, until the next justice is confirmed.
Justices who then served for a fixed term would have less time to impact the law and, knowing a new colleague is always less than two years away, they’d be more likely to craft narrow holdings that could last well beyond their own tenure.
The recurrent argument against the constitutionality of this proposal is that pushing justices into senior status would functionally be too similar to removing them from office. Yet everyone—well, nearly everyone—agrees that senior status, which is not contemplated in the Constitution and is the product of legislation, is lawful. That presents a powerful precedent, as Yale Law professor Judith Resnik points out in an article addressing the use of statutes for judicial reform.
“Just as over this past century reinterpretation [of Article III] has permitted much of the ‘judicial Power of the United States’ […] to be delegated to non-life-tenured jurists in courts [e.g., magistrates] and in agencies,” she writes, “Article III could similarly be reinterpreted to require guaranteed terms yet also to permit a mandatory, statutorily-fixed [end of term].”
“Congress could enact such a statute,” she adds, “with prospective application, such that current judges would not lose their seats”—sensible!—“thereby avoiding any arguments that it would diminish the salary or otherwise impair the independence of sitting jurists”—constitutional!
The founders knowingly circumscribed only minimal guidance for the third branch, allowing it to be adjusted to fit the needs of the nation (cf., initially omitting judicial review). A time when the high court’s legitimacy is questioned, as it is now, is the time to make an adjustment.
Nine justices, appointed by the president, who remain federal jurists after a statutorily fixed term, and whose power is limited by that term, seems to be a solution that checks all the boxes—including the constitutional one.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Tyler Cooper is the senior researcher at Fix the Court, a non-partisan organization focused on increasing transparency and accountability at the U.S. Supreme Court. He obtained a J.D. from Boston College, and has worked previously on Capitol Hill and to protect voting rights.