Severability. That is the answer. I’ll get to that in a few paragraphs – but first some set up.
I’ve been surprised that Democrats have not taken some fairly obvious responses to all of the accusations about their plans of packing the court. The main one is that it has been the Republicans over the past 4 years who have been “packing” the court following nearly 4 years of preventing Obama from installing judges he was entitled to select. They (1) blocked qualified Obama judges for no reason other than them being nominated by Obama, (2) refused to even hold a hearing on Garland, (3) changed the rules to allow a President who lost the popular vote to ram through extreme Justices on party line votes, (4) changed the rules again to ram through another Justice in contravention of every rationale they gave 4 years ago. Not to even mention the number of young unqualified judges appointed to lower courts.
The judiciary needs to be overhauled. Period. No longer can the random timing of deaths or retirements control how this country is run. The Supreme Court rulings on voting rights, gerrymandering, and money in politics, guns, heathcare, and other things have had an outsized impact on some of biggest issues facing this country. It cannot be allowed to continue like this now that one party has corruptly ensured they are in a position to frustrate any major policies of democratic administrations.
The court must be expanded. However, I do not think a simple increase of 4 Justices is wise. It will be rejected by too many as plain old “court packing” and will undermine the legitimacy of the court as much as what the Republicans have already done. So we should find a way to do it more fairly . . . but also with a backup for when Republicans try to take advantage of Democrats attempt to be fair.
The solution is term limits. 18 years for a Justice. Now – there are some unresolved Constitutional issues here. You cannot simply end the term of a Justice – they are appointed for life and only an Amendment can do that. But there may be ways such as what is done on Circuit Courts to make them Sr. Justices and cause that to result in an open seat.
Democrats should expand the court to 13 or 15. We will come up with some system for appointing the new Justices – perhaps Democrats get 2 and the other 2 are subject to a 60 vote threshold to ensure some bipartisan support. But there should be some method to ensure that some of the new judges have bi-partisan support. It would benefit the country if we can get back to a point where that is required. And while this oversimplifies things – there would be a number of questions that need to be worked out for the transition period – we develop a system where each president would get 2 picks (again – we’d need to figure out some logistics for when Justices retire or die before their 18 years are up).
Lots of other questions to resolve: Do we have panels of judges? Should certain cases be automatically heard en banc (such as any case looking to overturn a prior case)? Etc. These can be worked out.
But here is the key. Severability. The provision of court reform than increases the size of the court should be clearly made severable in the law. I anticipate any reform like this will be subject to challenges. And some of them will be reasonable – there are legitimate arguments both ways. But – if Republicans (and the Supreme Court) know that if they succeed in striking down the rest of law, the flat increase in Justices will stand – and Democrats will get to appoint all of them with 50 votes.
Republicans won’t like either solution – but they might realize that a system that gives them some say now is better than the alternative. And the Court may think twice about striking down some of these reforms for the same reason (not to mention that since the increase is severable – we can start appointing even if the law is being challenged).
So let’s court pack – but let’s do it wisely and try to fix the system at the same time we’re trying to restore what we should have had to begin with.
