President Joe Biden recently announced the establishment of a high-level commission to study reform of the federal judiciary, including the Supreme Court.
Count me a skeptic. Of course, the law permits it. But that doesn’t make it a good idea.
The most obvious problem with the push to pack the federal courts is that the Democrats have conceded that the reform is meant to be a partisan reaction to the Obama-era Merrick Garland episode, the feeling among Democrats that the Republicans have exploited their political power to overwhelm the courts with their appointments, and the intensity of the Democrats’ opposition to the Kavanaugh appointment. That makes this the very kind of partisan manipulation of the judiciary that it claims to be remedying. Politicization of the judiciary in the name of correcting the politicization of the judiciary strikes me as a bad policy foundation. Worse, it seems to commit the Democratic Party to the same “winner takes all” attitude to life inside the Beltway that was so perilously characteristic of Trumpism.
Counting the Court or Courting the Count
I have another, more fundamental, objection to these plans. The reformers argue that they are responding to the increasing politicization of the judiciary. But that conclusion largely depends on quantitative research that makes claims about the Court’s conduct, and the political leanings of the justices, almost entirely by counting the justices’ votes and coding them for the supposed partisan polarity of issues the Court decides. This approach to thinking about and studying the Court is part of a larger trend in legal research involving the ascendance of social science methods borrowed from political science. The approach has found popular voice in reporting at the SCOTUS Blog and the New York Times. But it is becoming a staple of academic legal scholarship as well. Quantitative studies tell us something, perhaps even something about the politicization of the judiciary. But they also crudely oversimplify the Court’s work, reducing it to a set of binary inputs derived from justices’ votes: yes-no; conservative-liberal.
Isn’t the Supreme Court’s jurisprudence something more than that? Even the use of the reductive term “vote” to describe the justices’ work is problematic. What’s the point of all those long, sometimes long-winded, “opinions” if it only boils down to vote counting? Significantly, the justices themselves studiously resist efforts to assign them and their work to partisan columns on a scorecard.
It’s beyond dispute that the political tilt of the judiciary frames legal outcomes. And it’s true that legal outcomes matter in ways that affect Americans’ every-day lives. Access to health care or participation in one’s cherished religious services or the right to enter the country or the autonomy to marry who one loves, among so many other central issues of life, hang on the justices’ votes. The cumulation of those outcomes, produced by a judiciary now leaning rightward, have the potential to change America overtime and in an enduring way. The partisan character of that effect, however, can’t be the basis for an intrusive overhaul of the apparatus of justice. It is, after all, the natural consequence of shifting political winds and the role the Constitution assigns to the political branches in structuring and assembling the judiciary. The Framers understood how important it would be to anchor the independent and powerful judiciary in democratic and accountable processes. With rising resentment for remote and elite institutions, the need for that popular anchor is not less resonant today. It’s the wisdom behind Mr. Dooley’s conclusion that “the Supreme Court follows the election returns!” Of course, the Democrats understand this. The same levers of judicial politics made the progressive achievements of the New Deal Court and later the Warren Court possible.
The quantitative research informing the reform movement tells us very little about the quality of the Court’s recent jurisprudence. Counting votes doesn’t engage closely with the reasoning, analysis, and methods deployed by the justices. But judicial reasoning is exactly what makes a judge’s “vote” something altogether different to a legislator’s vote. The latter can and should be informed by politics and power, and beyond that need not be justified according to any other kind of logic. Neglecting the very essence of judicial decision-making as it does, quantitative, results-centric critiques of the Court are not a claim that the Court’s work has become shoddy. That would have been a more compelling summons to sweeping judicial reform? To ascertain whether there has been a dramatic decline in the integrity and soundness of judicial reasoning – whether it produces right-leaning or left-leaning results – requires a more traditional engagement with the Court’s cases. That approach involves close readings of the opinions and critical interpretation of the reasoning deployed by the justices. It is a sleeves-rolled-up, painstaking exegesis of the Court’s richly nuanced opinions, and it is bound to produce a different perspective and understanding of the Court’s decisions than that which can be achieved by merely studying vote tallies.
Let me offer an example. I’m doing a big study of the Court’s recent jurisprudence around the doctrine of stare decisis, the longstanding principle that courts are bound by previous decisions of higher-ranking courts on similar matters. A simple conservative-liberal assessment of the votes in the relevant cases permits the superficial conclusion that the Court’s liberal wing favors adherence to precedent while the conservative wing is more willing to depart from the doctrine of stare decisis. So far, so good. But a close reading of the many opinions in that line of cases reveals a surprising convergence around the notion of law’s determinacy among justices as politically divergent as Justices Clarence Thomas and Elena Kagan. Far more than their votes in those cases, an understanding of the justices’ vision of the law that emerges from what they actually wrote in support of their votes is an insight of greater long-term significance. It also shows that there are curious departures from the standard left-right politicization critique of the Court. Beneath the votes, and at the level of the justices’ reasoning, there were nuanced strains of jurisprudential agreement that remain un-excavated if we operate only at the level of vote counting. On top of it all, the opinions turned out to be admirably sophisticated. They involved a wide variety of interpretive approaches, clear and coherent reasoning, and lively rhetoric. Whatever the outcome of the votes on the question of the fate of stare decisis, it is impossible to say that the quality of the Court’s engagement with the issue is somehow lacking.
In fact, even as quantified studies show an increasing rightward tilt on the Court, there is no suggestion that the jurisprudential quality of the Court’s decision-making has collapsed in a manner that requires urgent, dramatic structural reform. Some excellent and well-qualified legal minds have found their way to the bench in the last years, under administrations led by both parties. And the Court always had some weak links, even the revolutionary Courts led by Chief Justice John Marshall and Chief Justice Earl Warren. The debates at the Court over the meaning of law, foundational legal principles, and judicial method (as a proxy for discussion about judicial power itself) remain rich, informed, and intense.
Protecting Against a Judicial Capture?
The Democrats largely admit that their interest in reform is driven by, as the progressive think tank Take Back the Court puts it, the partisan interest in “re-balancing the Court after its 2016 theft.” But the reformers also seem convinced that the judiciary is at risk of being captured in the sense that it is now dangerously loyalist to the Republican Party or former President Donald Trump. The non-partisan advocacy group Fix the Court, for example, worries that the Court is “not only highly political, it also is polarized along partisan lines.” If these concerns were justified, then reform would be necessary because we would see that the judiciary is set – not on following the law – but on ruling only to benefit Trump personally or the cause of his residual political movement.
It’s an admittedly small sample, but we didn’t see anything like that in the handful of courts that were called upon to review Trump’s challenges to the 2020 election. Instead, up and down the judicial hierarchy and involving judges endorsed or appointed by both parties – including Trump himself – we saw judges doing their work admirably, applying the law in an objective and temperate manner. Chief Justice John Roberts was right when, in reaction to Trump’s twitter-broadside against an “Obama judge,” the Chief Justice insisted that
we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
The fact that Trump managed to make a significant haul of appointments in his single four-year term is not the same thing as demonstrating that there has been a Trumpist capture of the judiciary. The numbers are well known: 234 confirmed Article III judicial appointments, including three Supreme Court justices and 54 Court of Appeals judges. In his eight years in office, President Barack Obama only managed 329 confirmed Article III judicial appointments, including two Supreme Court justices and 55 Court of Appeals judges. There should be no doubt that this will be one of Trump’s most enduring legacies. If I had to to characterize the policy and political leanings of such a large number of judges, I would point to the respectable core of the Federalist Society, which espouses constitutional conservatism, a pro-business and small-government agenda, and sends signals on social issues that win support from Evangelical Christians and libertarians. Those are Republican values and the Democrats understandably oppose them. But there are legitimate and reasonable interpretative approaches to the law that might give those policy positions priority in the work of a judge. Results favoring Republican policies are not the same thing as blind, extra-judicial fealty to a political party or personality.
One glaring concern that emerges from Trump’s appointments is the troubling lack of diversity among the judges and justices he named to the federal courts. By incomprehensible margins, Trump’s appointees were white men. But correcting the broader problem of a lack of diversity in the judiciary – clearly made worse by Trump – is not at the forefront of the reform movement. The central issue is the judiciary’s supposed slide into partisan politics and the Democrats’ agenda makes added diversity an implied instrument to correcting that problem.
The Good Reform
I do have a worry that would motivate me to support judicial reform. I fear the Court’s loss of institutional capital and good-standing among Americans. I have these concerns less in relation to any specific developments at the Court. Instead, I’m concerned that the Court will suffer the loss of its authority along with seemingly all other public and political institutions in the American system. With that in mind, it might be wise to take some formal, structural steps to reinforce the institution and to make it less likely to succumb to hyper-partisanship and conspiracy-addled outrage. That doesn’t appear to be the spirit animating the reform movement. Rather than giving in to the politicization of the judiciary as the reform agenda does, the goal should be to insulate the Court from the most incendiary political issues, to fend off and discredit claims that it is just another political actor – and an unelected, elitist, unaccountable political actor at that.
The question is: Are the current checks in place no longer adequate to preserve the Court’s standing?
Its best defense is its own circumspection and modesty. The certiorari power allows the Court to avoid hearing cases. The political question doctrine allows it to avoid ruling even after it has agreed to hear a case. And the justices’ institutional sensibilities also are important. It is widely understood that this is a driving concern for Chief Justice Roberts, who has surprised observers and advocates by joining the Court’s liberal-wing in a few sensational cases where doing so was seen to be necessary to preserve the Court’s integrity.
Are these “passive virtues” still adequate, especially in light of the growing institutional skepticism and resentment in American politics? If not, then I might like to see a modest change, borrowed from the practice of the German Federal Constitutional Court. The eight-justice German Court cannot overturn the will of the democratically accountable branches without at least a slight 5-3 super majority. A 4-4 tie among the eight justices leaves the challenged policy in place. It might do the Supreme Court a great deal of good if it was blocked from exercising the rarefied power of judicial review without a slight 6-3 “super majority.” Oliver Lepsius, the brilliant University of Münster comparative law scholar, first suggested this to me. In the current context, this small change has the merit of avoiding unseemly, partisan court packing that aims merely to even-out the political balance at the Court. It also would allow both parties to recommit to the primacy of deliberative and democratic processes, and not judicial power, as the foundation for policy-making.
The proposed reforms under discussion also might contribute to shoring up the judiciary’s public standing. But I fear they risk looking more like bald Democratic attempts to neutralize the present Republic-leaning advantage in judicial appointments. As former Justice Ruth Bader Ginsburg explained not long before her death,
If anything would make the court look partisan it would be that — one side saying, “When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”
Old But Not Forgotten
I am least persuaded by proposed term limits. In a culture of judicial politics already steeped in legal realism, it is dangerous to ignore the benefit we gain from the stability resulting from lifetime appointments. If it’s really true that the justices just follow their political instincts and policy preferences, which seems to be a base-level assumption of the reformers, then increasing the frequency of turnover on the Court also risks increased instability in the Court’s jurisprudence.
Stability is a fundamental legal value and a core component of justice. This is especially true in a common law system like America’s, where constancy among the Court’s justices also reinforces respect for precedent and reliance on the law. Fix the Court nevertheless urges the abandonment of life-tenure to be replaced by an 18-year term limit. It’s possible that we would maintain the requisite stability on the Court with this change. But it promises to introduce a greater degree of tumult into the Court’s work and jurisprudence. Under the current life-tenure regime, the same nine justices sat together from 1994 to 2005, a remarkable decade during which the justices’ views on controversial issues were well known. This consistency permitted litigants and society to frame their expectations and reliance on the controlling rules. Even if there was some partisan drift and realignment among the justices over their long careers on the Court, the presence of a stable cohort meant radical reversals were rare. This stability also gave the Court’s new precedents the chance to put down roots rather than face immediate rethinking by a routinely reconstituted bench. With the rash of new appointments to the Court – five in the last decade – we’ve seen as more precedents reversed in the last three years than in the stable decade around the turn of the century. That Court’s stability was achieved with four new appointments in the early 1990s. An 18-year term limit would have cut that 10-year run in half and involved twice as many appointments.
I also doubt the suggestion that an 18-year term limit will spare us the “political circus” that accompanies today’s Supreme Court appointments. The political stakes of those appointments clearly are elevated by life-tenure. But it is the Court’s power in our political system that makes Court appointments such a combustible event. Marginally shorter terms won’t change that fact.
There’s also a nasty bit of ageism percolating in the term limits proposal. Fix the Court worries that many justices now serve “past their intellectual prime.” But we just had the oldest-ever presidential ballot and elected the oldest-ever president. If we can live with a septuagenarian president, then there is no reason to categorically exclude older jurists from service on the bench. All of us can name several Supreme Court justices who served vigorously and admirably right up to their deaths in office. And all of us can name several Supreme Court justices whose relative youth did not enhance the integrity of their legal reasoning.
Considering the fact that President Franklin Delano Roosevelt’s now-infamous effort at packing the Court involved a mix of age-sensitive appointments and an increase in the number of justices, I’m surprised by the traction those kinds of proposals are getting.
Prioritizing Supreme Court Reform
Biden’s reform commission suffers from the appearance of revanchist politics. But, as its mandate and membership still aren’t settled, it’s too soon to say much more.
Still, even if Senate Majority Leader Chuck Schumer calls Supreme Court reform “the big one,” it’s more relevant to ask whether this agenda urgently demands the administration’s attention. With luck, Biden can tackle one or two big structural issues in the honeymoon prior to the 2022 mid-term elections. I don’t see how partisan court packing can be one of his top priorities. In any case, it’s not clear to me that judicial reform would attract secure support from the Democratic Caucus. More profoundly, considering Biden’s commitment to the cause of social and racial justice, it might be better to have launched a commission to explore a second round of criminal justice reform for which there has been immense political support in the public and functional bipartisan consensus for new policy. No one can doubt that the need on that point remains enormous, especially as regards racial injustice in America’s judicial processes.
Of course, another way for the Biden administration and Schumer to respond to the Republicans’ judicial advantage would be to invest the same political capital in an energetic appointments effort as Trump and Mitch McConnel did. Instead of focusing on widening the goals or adding minutes to the game-clock, the Democrats might accept the rules as they are, seize their present political advantage, and work to ensure some partisan balance in the federal judiciary by single-mindedly pushing through their judicial appointments. There are reports that Biden’s team is doing just that.
But beating the Republicans at this game will require the Democrats to make judicial appointments a more central feature of their national political strategy. The Republicans have clearly succeeded in making the judiciary a part of their platform and political appeal in ways that the Democrats have not. It is one of the factors that keeps Evangelical Christians so firmly in the Republican camp, even as they may have doubted Trump’s Christian scruples. The Republicans have a concerted and coordinated program fueled by the so-called “moral majority” reaction to the Warren Court’s progressive jurisprudence and then radicalized by the Democrats’ success in defeating President Ronald Reagan’s nomination of Robert Bork to the Supreme Court.
If the Democrats’ efforts to reform the Supreme Court look like an attempt to restore partisan balance to the judiciary, it’s because that’s what they are. That’s an unfortunate and cynical concession to the politicization of the judiciary and to a brand of legal realism that is informed by a superficial approach to assessing the work of the Supreme Court. It is little more than an attempt to stuff the judicial ballot to the advantage of the Democrats.
To be sure, the reform agenda is not being driven by concern for a troubling decline in the quality of American jurisprudence. And so far there isn’t evidence of a Trumpist capture of the judiciary that is now filled with loyalists and hacks. But beyond all of this, maybe the most troubling part of the reform movement is that it is a concession by the Democrats that they can’t win the contest for the heart of the American judiciary without changing the rules, and changing the judiciary along the way.