(Photo by Alex Wong/Getty Images)
At first, the idea of meaningful judicial reform, particularly Supreme Court reform, seemed far-fetched. Despite the Constitution saying remarkably little about how the Supreme Court is composed or intended to operate, the “nine justices reigning for life” model has calcified in the imaginations of most Americans. Few even know that the Supreme Court hasn’t always had nine justices, or that the current number was only chosen to reflect the number of appellate circuits at the time… which now number 13. Hmmm…
But the last few weeks have changed all that. A 5-4 conservative majority off the back of sniping Merrick Garland’s seat was not enough for Republicans staring into what’s shaping up to be a brutal shellacking at the polls, and they reversed course on their own deeply held principlesTM from 2016 and rushed Amy Coney Barrett onto the Supreme Court without letting any minor issue like “nearly killing the president” slow them down. Now, court expansion proposals are now running rampant throughout the legal commentariat.
Two more justices, four more justices, 20 more justices… everyone’s got a theory. Except Joe Biden, of course, but he’s willing to pawn this off on a “committee” which is usually where reform goes to die, but at this point reform is becoming so mainstream that even the committee looks poised to pitch something meaningful. Court expansion may not be everyone’s cup of tea, but it’s certainly pushed the Overton Window.
Mitch McConnell is unfazed by the threat of court expansion — which should terrify its advocates. Liberals paint McConnell as a serial power-grabber, but in reality he’s a vampire who must be invited in first. His well-worn playbook is to frustrate liberals into some measured retaliation and then use that as justification for a more extensive breach down the road. Midterm elections are always a nightmare for the White House party and 2024 will, in theory, bring a ticket that’s mostly succeeding on the basis of being “not Trump” into a race bogged down by the ongoing economic and public health fallout Trump caused. Republicans returning to full control in January 2025 isn’t necessarily likely, but it’s not an unreasonable assumption for McConnell. That said, one of the more compelling arguments for liberals taking the risk is that this past week underscores that Republicans may not be able to ever win another election without courts engaging in direct voter suppression efforts. One could argue that expanding the Court once is all it would take. That seems overly confident and reminiscent of when liberal court watchers scoffed when I suggested not banking everything on Hillary winning in 2016, but the logic is decent.
But what might be good for Mitch is not necessarily what’s good for the institution of the Supreme Court. That’s why John Roberts needs to channel his Charles Evans Hughes and starting thinking about what he wants the Court to look like going forward. Because change is coming and like the headline says, “we can do this the easy way or the hard way.”
The easy way, and the way that would be best for the country, would be a term limit system that cycled justices off of the “Supreme Court” after 18 years. This is the bill proposed by Reps. Ro Khanna, Don Beyer, and Joe Kennedy III which would give every presidential term two justice appointments that cannot be ignored by the Senate. This would end the macabre practice of basing the Republic on the lifespan of an elderly woman, ensure that the Court remains a lagging reflection of the will of the country, and allow more talented jurists to serve on the nation’s top court by increasing routine turnover. For Democrats, it could actually encourage their voters to regularly care about the judiciary by guaranteeing that each election carries two prospective justices with it.
This is also a provision that cannot be turned around the next time the political winds shift. Tit-for-tat is an easier sell than putting the toothpaste back in the tube. Adding four liberals just turns into adding six conservatives. But by the earliest opportunity for the GOP to do anything about term limits, the proposal (that’s already broadly popular!) will have already put two justices on the Court. It will already be a routine.
The problem is, there are constitutional questions about a term limit proposal. The Constitution says that justices shall “shall hold their offices during good behaviour” which common law interprets as “for life.” A term limit for active duty service is not the same as firing a justice, who would still remain in the judiciary and could be called upon to hear active panel matters in the event of vacancy or recusal, but the Supreme Court could say this bill is unconstitutional. Though in theory it could be passed with a proviso that it is excluded from the Court’s jurisdiction, which is explicitly constitutional.
And that’s where Roberts has a choice. A term limits bill passed in the first days of 2021 would send someone to measure drapes in Clarence Thomas’s office by April 2021. The Court would have to make a ruling immediately on whether or not this regime passes muster because they need to know who actually has the job. Court expansion can be held in reserve and put the screws to Roberts and his innate institutionalism (Thomas would obviously be unable to take part in a case that he’d have brought himself as the only person who would have standing). Bless term limits or watch the Court become a pinball machine for the next 50 years — by the end of which it could have 20-30 members and be a joke like the Swiss Supreme Court and its 38 judges.
It wouldn’t immediately reverse the conservative majority on the Supreme Court, though it would return it to the 5-4 lead that it would be if the Senate maintained internal consistency and either put Garland/Barrett on or installed Gorsuch and left this seat open. It would make the 2024 election a direct referendum on the future of the Court with Roberts and Alito to be replaced by the winner of that election. And it has the advantage of ending an aristocratic stain on America’s ostensible democracy.
So what’s it going to be, John?
Earlier: Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier
Congress Introduces First Supreme Court Term Limits Bill!
October 31, 2020 at 12:22AM
https://abovethelaw.com/2020/10/court-reform-is-now-inevitable-john-roberts-can-do-this-the-easy-way-or-the-hard-way/
Court Reform Is Now Inevitable: John Roberts Can Do This The Easy Way Or The Hard Way - Above the Law
https://news.google.com/search?q=easy&hl=en-US&gl=US&ceid=US:en
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