An op-ed forum in today's New York Times includes some interesting ideas for "How to Fix the Supreme Court." But evaluating them requires clarifying exactly what, if anything, is broken about the Supreme Court. The eight authors describe several problems, ranging from undeniable (e.g., an increasingly partisan and rancorous process for selecting justices) to misconceived (e.g., a Court that is insufficiently deferential to progressive policy preferences).
New York Times Magazine staff writer Emily Bazelon's introduction falls into the latter category. Bazelon says the Court "can, and often should, be the protector of minorities whom the majority may trample (including religious groups, a current concern of conservatives)." She cites Brown v. Board of Education, the 1954 decision that overturned racial segregation in public schools, as a good example that has been "embraced by every recent nominee to the court, across the ideological spectrum." And during the 1960s and '70s, she notes, "liberals…came to rely on the court to protect civil rights and prevent the establishment of religion, even when doing so was out of step with the views of the public."
Bazelon is less keen on other judicial vetoes of the majority's will, such as the Court's 1905 decision in Lochner v. New York, which overturned state limits on how many hours bakers could work each day and each week. Through decisions like that, she says, "the court discredited itself by putting the interests of corporations above those of workers."
That framing seems dubious, since the rigid regulations at issue in Lochner put small businesses such as the Utica bakery owned by the plaintiff at a special disadvantage. You could say the Supreme Court sided with the little guy by upholding freedom of contract.
In any case, shouldn't Lochner be judged by the soundness of its constitutional reasoning, as oppose to the "interests" it favored? Although the decision is widely criticized by both progressives (for reasons similar to Bazelon's) and conservatives (for its "activism" and its reliance on "substantive due process"), there is strong evidence that the economic liberty it defended was supposed to be protected by the 14th Amendment, as Damon Root points out.
Similarly, Bazelon worries about the possibility that the Supreme Court's conservative majority, reinforced by the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, will overturn the Patient Protection and Affordable Care Act. Although Democrats played up that supposed danger during Barrett's confirmation hearing, it seems to be mostly a figment of their imagination. But if the justices dare to nix Obamacare, Bazelon says, "they risk overplaying their hand much as the conservative majority did in the 1930s," when the Court blocked parts of Franklin Roosevelt's New Deal agenda. Again, not a word on whether the Affordable Care Act's individual health insurance mandate can still be upheld as a "tax" now that it no longer generates any revenue (it's hard to see how) or on whether the statute can stand without the mandate (it's hard to see why not), which are the actual issues confronting the Court.
Aaron Tang, a law professor at the University of California, Davis, also takes a result-oriented approach in an essay arguing that Democrats should encourage the justices to "moderate their views on important issues" by threatening to enlarge the Court. Tang cites the precedent of FDR's 1937 court packing scheme, which failed in Congress but, he argues, succeeded in taming recalcitrant justices. "Faced with the prospect of serving the rest of his career in the minority of a delegitimized court," he says, "Justice Owen Roberts became more restrained in his antagonism to the New Deal."
Other observers, including Democratic presidential nominee Joe Biden (until recently, at least), have argued that pressuring justices to apply the Constitution differently is precisely the problem with court packing. As a senator in 1983, Biden called FDR's scheme "a bonehead idea" and "a terrible, terrible mistake" that "put in question for an entire decade the independence of…the Supreme Court."
Georgetown law professor Randy Barnett underlines that risk in his contribution to the Times forum:
The aim of court packing, then and now, is to enlist the court as a politically partisan actor. Once packed, the court will let the partisan majorities in Congress that packed it exercise unconstitutional powers; and it will impose the ideological agenda of one party on states that are controlled by its rival.
But once the norm against court packing is gone, there is no limit on how often it will be used by each party when it controls both Congress and the presidency. If Democrats expand the number of justices in 2021, Republicans will do the same when they have the power.
The rulings of such a court would be rightly be perceived as entirely dependent on the will of the political branches. Once politicized in this way, it is hard to see how the perceived legitimacy the Supreme Court as a court of law could be sustained—or why a court so composed should have power to review the constitutionality of laws.
If the problem with the Supreme Court is that it arrives at conclusions progressives do not like, court packing seems like a pretty good solution—although, as Barnett notes, only in the short term. But if the problem is that the institution is already excessively politicized, that the stakes of each appointment are so high that the Senate's "advice and consent" devolve into nakedly partisan brawls, other reforms might make more sense.
Yale Law School student Melody Wang focuses not on the Court's composition but on the process for choosing the cases it hears. She argues that giving "random appellate panels" the authority to make those decisions "would restrain judicial activism." On its face, this is a content-neutral reform, although the examples of such condemnable activism that Wang cites (involving abortion laws and the constitutionality of mandatory union fees for public employees) both point in a partisan direction.
Northwestern law professor Steven Calabresi, who chairs the Federalist Society's Board of Directors, argues that an 18-year term limit for justices would prevent them from staying on the Court when they are no longer mentally fit and from influencing the choice of their successors through strategic retirement decisions. He suggests that term limits also would turn down the temperature of the selection process.
Under Calabresi's plan of staggered terms, each president would have an opportunity to pick at least two justices (four if he is reelected). "No other major democracy in the world gives the justices on its highest court life tenure," he notes. Calabresi argues that an 18-year limit, which would require a constitutional amendment that he thinks should also fix the Court's size at nine justices, would preserve judicial independence, "end what has become a poisonous process of picking a Supreme Court justice," and "promote the rule of law" by "depoliticiz[ing] the court and judicial selection."
Boston College law professor Kent Greenfield, also copying from international practice, recommends that Congress create a separate court to deal with constitutional questions. "This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance," he writes. "The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments."
Whatever your take on these proposals, a good preliminary test is whether their advantages depend on your party or ideology. Former Stanford Law School Dean Larry Kramer, for example, suggests that adding justices to the Court, which he calls "a political response to a political act," ultimately "protects judicial independence." We probably should be suspicious of reforms that seek to depoliticize the Supreme Court by politicizing it even more.