Reform the Supreme Court, but don’t pack the Court
Blake Ziegler | Tuesday, October 27, 2020
Amy Coney Barrett was confirmed to the U.S. Supreme Court after a contentious confirmation process. Since her nomination, Democrats have frequently threatened reforms to the Court in an effort to minimize the victories Republicans have gained in the judiciary. In particular, Democrats have suggested court packing, where they increase the number of justices on the Court to offset the 6-3 conservative supermajority and garner a liberal majority.
Vice President Joe Biden has avoided a clear stance on court packing, only saying he would establish a commission as president to study potential reforms for the Court. Regardless, progressives are clear they will pressure a Biden administration to expand the Court, revealing that court packing is likely in the Democrats’ agenda.
However, court packing does not work. If Democrats are in control of the White House and Congress after November, their expansion of the Court will be to surmount the new conservative supermajority and establish a liberal majority. Republicans would feel the need to act similarly once they are in power again, and the cycle will continue until the Court is just another political weapon utilized in every election.
This tit-for-tat strategy may serve short-term political goals, but would also diminish any public opinion that the Court is separate from politics, void of partisan shams and political gameplay. We cannot afford the nation to lose faith in its judiciary, especially at a time when our democratic institutions are being undermined by foreign influence.
Moreover, court packing has dangerous legal implications. The notion that the Court’s rulings can be overturned when a new party comes into power, placing a new majority on the Court through court packing, undermines the legitimacy of the judiciary’s rulings and trust in the Court. If Democrats are confident they will win the next election, why would they see the need to enforce Republican court rulings that will seemingly be overturned in a few years?
A Democratic president might refuse to enforce such conservative rulings, hoping to garner a liberal majority in the Court that rejects those rulings through a Democratic Congress. Such maneuvering threatens the jurisdiction of the Court and faith in the execution of its rulings. A judiciary riddled with court packing is one marked by partisan tactics and a disregard for constitutional integrity, making a mockery of the sacred role many associate with the justice system.
Still, there are issues with the Supreme Court. The highly politicized nature of the last three nominations have demonstrated the need for reform. Past nominees were confirmed with much greater margins than the slim simple majorities we have seen recently. Confirmation votes are determined by how well a nominee aligns with a senator’s political views, not the qualifications of the nominee. We should work towards a system that limits partisanship while maximizing the opportunities for qualified voices at the highest level of the judiciary.
First, we should pass a constitutional amendment that limits the Court to nine justices. Historically, efforts at expanding or downsizing the Court have been to pursue political ends. Such efforts only promote greater partisanship, not cooperation. There is nothing intriguing about the number nine, it simply happens to be the current number of justices. We should avoid attempts to increase or decrease this number to prevent greater politicization of the Supreme Court.
Additionally, such a measure would eliminate the Court as an election issue (to an extent), further reducing partisanship on this issue. There is support for the measure on both sides of the aisle, as seen in the House and the Senate. In fact, even current Democrats in the Senate oppose measures to expand the Court.
Second, Congress should pass legislation installing 18-year term limits for Supreme Court justices. These nominations would rotate every two years, ensuring each president has two nominees, and four nominees if re-elected for a second term. When the Constitution was adopted, lifetime appointments for Supreme Court justices were seen as the only way to preserve the integrity of the Court. However, today’s partisanship demonstrates that these lifetime appointments play a greater political role than any Founding Father could have intended.
Deaths and retirements of justices become politicized and this atmosphere flows into the confirmation process. Justice Ginsburg was hoping to retire under a Democratic president, ensuring her replacement would be of liberal views. The same can be said of Justice Kennedy, a Republican-appointed justice who retired under President Trump.
Because the minority party, whether Republican or Democrat, is unsure if they will be able to nominate a Supreme Court justice in the short term, each confirmation battle is fought with greater pressure. This slowly makes the judiciary a more political aspect of American life. Creating term limits and staggering them would allow us to know when a nomination is coming and ensure a fair process for all parties. It would no longer become an election issue. Such a solution has support among legal scholars, Republicans and Democrats. We should endorse this proposal to promote greater discourse and less polarization in our confirmation process.
Third, the Senate should require 60 votes to confirm a Supreme Court nominee, not a simple majority of 51 votes. In 2013, then-Senate Majority Leader Harry Reid (D-NV) lowered the requirement to confirm presidential appointments from 60 votes to 51 votes, which now-Senate Majority Leader Mitch McConnell (R-KY) expanded to Supreme Court nominees in 2017. This is known as the “nuclear option.”
We should revert back to the 60-vote requirement as a gesture towards bipartisanship, working towards ensuring that nominees to the Supreme Court are qualified, fair and balanced. Such a move might also work towards nominating moderate nominees, reducing the chances of a partisan Court.
These reforms can surely be explained more, but that requires more columns. My goal here is simply to introduce these changes. There is surely opposition to these ideas, but my hope is that such disagreements create a fruitful discussion towards a stronger Supreme Court that preserves the integrity of our institutions.
Blake Ziegler is a sophomore at Notre Dame from New Orleans, Louisiana, with double majors in political science and philosophy. He loves anything politics, especially things he doesn’t agree with. For inquiries, he can be reached at [email protected] or @NewsWithZig on Twitter if you want to see more of his opinions.
The views expressed in this column are those of the author and not necessarily those of The Observer.