Issues to Watch

It’s Time to Reform the Supreme Court, But How?


*Andrew M. Harvey

During the past few months, there has been a highly contested debate regarding the Supreme Court.  Michael Klarman, Why Democrats Should Pack the Supreme Court, Take Care Blog (Oct. 15, 2018), https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court; Lee Drutman, It’s Time for Term Limits for Supreme Court Justices, Vox (June 27, 2018, 3:57 PM), https://www.vox.com/polyarchy/2018/6/27/17511030/supreme-court-term-limits-retirement.  It has been said that “democracy doesn’t matter” anymore, and the only true goal is “holding and accumulating power.”  Klarman, supra.  To combat this issue, individuals from both parties have introduced proposals for changing the current composition of the Supreme Court.  See generally Klarman, supra; Drutman, supra.  Two of the proposals that have received the most attention are judicial term limits and court-packing.

The Constitution states that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”  U.S. Const. art. III, § 1.  Interpretation of this section has led to lifetime tenure for Supreme Court justices.  See Article III and the Courts, Jud. Learning Ctr., https://judiciallearningcenter.org/article-3-and-the-courts/ (last visited Jan. 27, 2019).  Many proponents of judicial term limits propose tenures lasting between ten and eighteen years.  David Leonhardt, The Supreme Court Needs Term Limits, N.Y. Times (Sept. 18, 2018), https://www.nytimes.com/2018/09/18/opinion/columnists/brett-kavanaugh-supreme-court-term-limits.html; Drutman, supra.  A proposal that has garnered wide attention suggests eighteen-year terms which are staggered so that there is a vacancy every two years.  Leonhardt, supra.  Implementing this proposal would lead to at least two appointments per four-year presidential term.  Id.

Advocates of judicial term limits provide a multitude of reasons why their proposal should be implemented.  See, e.g., Leonhardt, supra.  The overall theme of their argument comes from the “unfairness born of randomness,” which is impossible to escape under the current system.  Id.  The chances of appointing justices “depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society.”  Id.  Lee Drutman argues that with judicial term limits will come much-needed stability.  Drutman, supra.  Advocates believe this system will “significantly decrease the likelihood of . . . unexpected departure[s].”  Id.  These unexpected departures come from “justices . . . staying on the bench longer, not wanting to leave unless they can be replaced in a political environment that ensures a replacement on the same side.”  Id.  This practice has made it “more likely [for justices] to die on the bench.”  Id. 

Other aspects that judicial term limit proponents point to are average judicial tenure lengths and average life expectancy statistics.  David Fishbaum, The Supreme Court Has a Longevity Problem, but Term Limits on Justices Won’t Solve It, Harv. Bus. Rev. (July 13, 2018), https://hbr.org/2018/07/the-supreme-court-has-a-longevity-problem-but-term-limits-on-justices-wont-solve-it.  “The average tenure of justices is likely to increase to 35 years on the bench over the next century, compared with 17 years over the previous 100 years.”  Id.  This is due to the dramatic change in the human’s average life expectancy over the past one hundred years.  Id.  When the Constitution was ratified, average life expectancy was thirty-six years.  See 1750-1800, Legacy, http://www.legacy.com/life-and-death/the-liberty-era.html (last visited Jan. 18, 2019).  That number is now “beyond the age of 80.”  Fishbaum, supra.  It is also argued that the resulting longer terms lead the “justices [to] increasingly lose touch with the world outside the Court.”  Drutman, supra.  Advocates point to statistics which show that “people are in much sharper shape mentally in their 40s, 50s and 60s than they are in their 70s, 80s and 90s.”  Christopher Ingraham, Why It’s Time to Get Serious About Supreme Court Term Limits, Wash. Post (Feb. 13, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/02/13/why-its-time-to-get-serious-about-supreme-court-term-limits/?noredirect=on&utm_term=.14b0e103903d.  Supporters also contend that creating judicial term limits will promote the consideration of “highly qualified candidates in their late 50s and early 60s who are now largely ignored by presidents.”  Leonhardt, supra.

Opponents paint a much different picture when discussing the ramifications of implementing judicial term limits.  See Anthony Marcum, The Supreme Court Won’t be Saved by 18-Year Term Limits, Wash. Examiner (Sept. 24, 2018, 3:04 PM), https://www.washingtonexaminer.com/opinion/the-supreme-court-wont-be-saved-by-18-year-term-limits.  The first aspect they examine is the method for implementing judicial term limits on the Supreme Court.  The only way to install and enforce judicial term limits is to amend the Constitution, and opponents of this proposal believe there is a small possibility that will occur.  Id.  Also, David Fishbaum contends that a term limit proposal will “increase[] the chances that a president could appoint a majority of justices.”  Fishbaum, supra.  Anthony Marcum states that one reason leading to this outcome is the advocates’ “fail[ure] to account for justices not finishing their full term.”  Marcum, supra.  Opponents assert that the result of this outcome will lead us into the same situation that we are faced with today.  Id.  Finally, the adversaries ask, “[w]hat would prevent the Senate from refusing to confirm the president’s ‘guaranteed’ nominees?”  Id.  This tactic was “demonstrated during Merrick Garland’s failed nomination” and “some Senate Republicans promised to do just that under a Hillary Clinton presidency.”  Id. 

A second proposal is the idea of court-packing, or adding additional justices to the Supreme Court.  This is a feasible option because “[t]he Constitution does not specify the number of justices who should serve.”  Julian Zelizer, Packing the Supreme Court Is a Terrible Idea, N.Y. Times (Oct. 15, 2018), https://www.nytimes.com/2018/10/15/opinion/supreme-court-packing-democrats-.html.  The number of justices that the proponents of this proposal suggest ranges from eleven to twenty-seven, and the additional justices would be “phase[d] in gradually . . . to prevent any one president and Senate from gaining an unwarranted advantage.  Jacob Russell, The Supreme Court Doesn’t Need 9 Justices, It Needs 27, Time (July 16, 2018), http://time.com/5338689/supreme-court-packing/.

Advocates of this proposal point to the fact that, in the past, Congress has changed the size of the Supreme Court.  Richard Primus, Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal, Harv. L. Rev.: Blog (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-constitutional-analysis-of-the-calabresi-hirji-judgeship-proposal/.  They contend that this proves such a proposal is not unconstitutional.  Id.  Proponents also point to the fact that “[i]n 1869, when the number nine was chosen [as the total number of Supreme Court justices], the U.S. was roughly one-tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower.”  Russell, supra.  Jacob Russell contends that “larger bodies have some inherent features that are more democratic and effective: they are more representative, and they include a more diverse group; they can do more work; . . . and any one vacancy would not dominate the political scene as it does today.”  Russell, supra.

When discussing caseloads, advocates look to the statistic that the Supreme Court “grants hearings for only about 80 out of 8,000 cases filed each term.”  Id.  The court-packing proposal permits a larger docket, “allowing [for] a uniform national resolution of more disagreements between regional circuits.”  Id.  Adding more justices would also “make the Supreme Court more comparably sized to our federal circuit courts.”  Id.  Proponents believe that this will generate two advantages.  “First, it reduces the influence of a single swing voter.”  Id.  “Second, there is variance in the panels, which are randomly drawn.”  Id.  Advocates believe this “system [will] promote[] variety and prevent[] excessive entrenchment of . . . a 5–4 majority.”  Id.

Opponents of the court-packing proposal vehemently deny that it can create any positive outcomes.  See Ilya Somin, The Case Against Court-Packing, Wash. Post (Nov. 27, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/11/27/the-case-against-court-packing/?utm_term=.cb58c1d23126.  First, they attack the proponents’ contention that, in the past, Congress has authorized court-packing.  Id.  Ilya Somin points to the fact that “since the late 1800s, a strong political norm against court-packing has emerged [a]nd both political parties have largely followed it.”  Id.  For example, in 1937, “Franklin D. Roosevelt famously sought to pack the Supreme Court.”  Id.  However, “[t]hat effort was blocked in Congress, in part through the efforts of senators of his own party.”  Id. 

Second, opponents provide a scenario resulting from the court-packing proposal that they insist could be disastrous.  Richard Primus states that [i]f a party utilizes court-packing to gain majority control, when the opposing party next gains control, they will “respond[] by creating a similar imbalance in the other direction.”  Primus, supra.  Primus goes on to describe that the number of justices will become so large that it will be an “absurdity.”  Id.  When this point is reached, Primus believes the court will lose its legitimacy.  Id.         

While the need to deal with the increasing longevity of Supreme Court justices is clear, the best method to resolve the problem is less apparent.”  Fishbaum, supra.  Regardless of party affiliation, we should all strive to return the Supreme Court to its rightful place as the most prestigious court in our country.  “Given the potential impact a static court could have on our government’s essential system of checks and balances, there’s no time like the present to begin the discussion and examine the options.”  Id.  Only time, extensive research, and bipartisanship will determine if any proposals will be beneficial for the Supreme Court and, more importantly, our country.

*Andrew M. Harvey is a third-year evening law student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  Andrew is also a scholar of the Royal Graham Shannonhouse III Honor Society. Andrew has been working at the Law Offices of Peter T. Nicholl for the past four years as a paralegal/law clerk.

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