There is much well-justified ado about President Donald Trump’s appointment of Amy Coney Barrett to the Supreme Court. Her appointment unbalances the court heavily to the right, making it arguably the most conservative court in modern history. No serious advocate of modern democracy can believe such an unbalance is healthy for the nation, and the probability that this bias will remain for many years exacerbates the malaise likely to ensue. Democratic and other sensible people see that the Republican Majority in the Senate, personified by their leader, Mitch McConnell, disingenuously applied an imaginary rule to deny President Obama, a Democrat, his Constitutional prerogative to have his nominee to the court considered for confirmation. McConnell now hypocritically applies another imaginary rule to nullify the first one. McConnell also refused to allow Obama appointments to the federal judiciary for years, which left the courts short handed, and in the four years of Trump’s presidency, has jammed through many appointments on a strictly partisan vote.
In 2016, in a Daily KOS article I wrote here, I offered President Obama a solution to that log jam, suggesting that he, by declaring that the senate had, through extended inaction, abdicated its Constitutional obligation, thereby entitling him to unilaterally appoint Merrick Garland to the court (as the Constitution arguably allows him to do). However, I presume the right people in the administration did not read my article, or they were too timid to implement it. Today I doubt anyone imagines Mr. Trump would hesitate to use that approach. That’s the difference between a president who couldn’t imagine not asking permission and one who couldn’t imagine asking forgiveness.
But that was 2016; this is 2020. In the event Vice President Biden wins the election, and especially if the Democrats hold the House and sweep the Senate, there are potential remedies being discussed to rebalance the Supreme Court:
- Add justices to the court (generally referred to as “packing” the court): Enhancing or diluting the impact of partisan justices to restore or subvert balance. The perception of whether the additional appointment(s) are made to restore or subvert is, of course, rather in the eye of the beholder. This approach was made famous by President Franklin D. Roosevelt, who proposed legislation to increase the court by as many as six justices. The proposal was seen as purely political, and was roundly rejected by Congress. Historically, however, the number of justices on the Supreme Court has fluctuated from six to ten over the past 231 years.
Should a President Biden seek to “pack” the court, it’s very likely his move, like that of FDR, will be seen as purely political, and he will need Congress to concur. Passage may be a rough road, it won’t address the obvious long-term problem, and it won’t make the court more efficient and functional. Ironically, Senate Republicans enabled the 2017 incoming president to “pack” the court when they cynically denied President Obama even a hearing to fill an empty seat (vacated by Justice Scalia 11 months before Mr. Obama was to leave office) while fast-tracking his successor’s nominee in 31 days from nomination, confirming her one week prior to the 2020 presidential election.
- Shorten the justices’ terms of office: Federal Judges serve a lifetime appointment. HR 8424, offered by Congressman Ro Khanna, would effectively limit Supreme Court terms by transitioning justices to a special retirement status, called “Senior Justice” used for retirees of lower bench appointments –In effect, a reserve status roughly analogous to that of a reserve officer in the military. Unfortunately it is no short term solution as it is currently worded; sitting justices would be given a “grandfather” exemption and allowed to remain on the court for life. A group of Constitutional scholars has just signed and submitted an open letter endorsing this approach. Interestingly, another section of the bill would codify the suggestion I made in my aforementioned Daily KOS article, specifying that a Senatorial delay of 120 days constituted a waiver of its advice and consent authority, and explicitly empowering the president to fulfill the appointment at his discretion.
This solution might provide a long-term fix, is supported by thoughtful Republicans, and is worthy of serious consideration –but it will also be not address the problem of an unbalanced court in the short term. It also won’t help to make the court more efficient and functional.
- Reassign justices to other courts: Presidents appoint federal judges to their positions, and reassign them all the time. Traditionally, the Supreme Court has been exempt from reassignment, but there is nothing in the Constitution nor federal law to prevent a president from reassigning a Supreme Court justice to a lower court, although it may be that the Senate would have to confirm the justice to a new appointment, just as it does so for those on the way up.
Clearly such moves would be seen as politically motivated. More importantly, the permanence of a Supreme Court appointment is a vase which, once shattered, will be very fragile in repair. Breaking precedent makes the judiciary more vulnerable to political pressure if a displeased and vengeful president can be expected to jockey justices at whim.
- I propose to restructure the court: This fourth alternative could be complimentary to HR 8424. By restructure, I mean to change the Court’s framework to make it more effective and more efficient while also expanding and philosophically balancing the court, as follows:
The court would be divided into two panels. One panel would be assigned criminal law cases, while the other would be assigned civil law cases. Five or seven justices would be on each panel, the odd number of justices to avoid ties. In the event a case was so momentous or also fell substantially within the domain of the alternate panel, the court could collectively decide to convene the full court (en banc) or the alternate panel could be empowered to call for a full court review within a reasonable period of time, perhaps 10 days. In the event this even-numbered court drew a tie in its decision, the ruling of the lower court (or in the case of a full court review of a single panel’s decision) the opinion of original panel would prevail. The chief justice would oversee both panels and the president would designate one Justice on each panel as “senior” to lead.
In cases of Constitutional conflict, ranging from challenges between branches of the federal government, or between the federal government and the states, the full court would take the case immediately. Such cases would take priority over all other litigation, save those presenting an immediate risk to individual or public life or health and safety. As is the currently the situation, a tie would allow the lower court decision to stand.
The advantages of the two-panel Supreme Court would include:
- much faster reviews -the court is overburdened and the case load is orders of magnitude beyond that envisioned in the late 1700s.
- Focused expertise -justices could be assigned according to their strengths; experience, interest and record, thereby offering better, presumably more just, outcomes.
- A President Biden would be able to appoint one –or as many as three– judges, immediately rebalancing the court politically and, presumably, philosophically in a manner that should be seen as less politically biased. A reframing, not a “packing” of the court.
Some combination of the second and third alternatives would be optimal, along with a statutory requirement that Supreme Court justices comport to the same code of conduct as they have laid out for lower courts, particularly with respect to recusals.