Since his election in 2016, President Trump has had the opportunity to appoint not one, but two Supreme Court justices. If re-elected in 2020, the probability of another vacancy on the Court is very high. One of the vacancies, later filled by Justice Neil Gorsuch, first opened under President Obama with the death of Justice Antonin Scalia. But with the Republicans in the majority, the Senate was able to delay a confirmation hearing until the election of President Trump. The Court’s legitimacy as an institution has been called into question. It has become increasingly politicized and polarized. With the current rules for appointments and no restriction on how long a justice can serve, random chance and opportunities for key appointments can shape the landscape of the Court for a generation or more.
Many of the current candidates seeking the Democratic nomination for President have proposed reforms to the Court, ranging from increasing the number of justices to instituting term limits. Mayor Pete Buttigieg has suggested that he is open to potentially adding more justices, stating that “in some ways it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.” Senator Bernie Sanders has suggested imposing term limits or even possibly rotating justices to the appellate courts. These sentiments are echoed by most, if not all, of the people currently seeking the Democratic nomination for President. With so many ideas and potential changes to the Court, the question remains–which of these ideas, if any, would lead to the preservation of democratic norms and institutions rather than erode them?
This is not the first time that major shifts to The Supreme Court have been proposed. As Ziblatt and Levitsky note in How Democracies Die, President Roosevelt attempted to pack The Court in the late 1930s. The authors argue that this effort would have made the Supreme Court “hyper-politicized, its membership, size, and selection rules open to constant manipulation, not unlike Argentina under Perón or Venezuela under Chávez.” . This effort ultimately failed. Many at the time feared the erosion of political norms and the sense that a president was trying to violate the independence of a co-equal branch of government. This action represented a perceived threat to the independence of an institution that is viewed as critical to American democracy. Ensuing proposals to change the Court have been met with similar resistance.
Court packing has been, to a large extent, uncommon in the last century or so and increasingly politically costly. Levitsky and Ziblatt assert that the practice became largely unacceptable by the late 19th Century . After Roosevelt’s failure to increase the number of justices in the late 1930s, suggestions to reform the Court through changing the number of justices have been met with increasing skepticism and hostility. So perhaps for now, transforming the Court through altering the number of justices remains if not impossible, at least very unlikely. It is likely to be seen as a partisan effort by the President and his/her party to gain even more influence in another branch of government.
Today, the Supreme Court is already hyper-politicized. Confirmation votes are more frequently split along partisan lines. Justice Ruth Bader Ginsburg was confirmed 96-3 in 1993. Justice Neil Gorsuch was confirmed 54-45 in 2017 and there is still debate over whether or not his seat on the bench was stolen from Merrick Garland. Confirmations have become a contentious issue in American politics. While there are a number of factors that impact a nominee’s confirmability, the fact that justices will likely serve for decades undoubtedly weighs on the minds of senators. A president’s ability to appoint a justice to the Supreme Court is largely left up to sheer chance and it is never obvious how many justices they will get to appoint throughout their term. Some presidents may serve eight years without a single Supreme Court appointment. President Trump may wind up appointing two or more depending on a number of variables that are still unknown. Presidents therefore have the potential to shape the political nature of the Supreme Court for decades with their appointments.
Term limits, however, could prove to be a valuable reform that would reduce some of the partisan threat that the opposition party may perceive from a president’s nominee. First and foremost, this reform would ensure that presidents, Congress (and to an extent, the people who elected them) would have greater say in the composition of the Supreme Court. It would also ensure that the Court is constantly being reinvigorated with new ideas and differing perspectives. In theory, I believe that this would at least marginally reduce the hyper-partisan nature of the Court as it stands today. If the Court is constantly changing, each appointment feels less like a dire circumstance for one party and the institutional integrity of the Court becomes more concrete. As Levitsky and Ziblatt argue, “the American system of checks and balances…requires that public officials use their institutional prerogatives judiciously.”  In order for the judiciary to execute their institutional prerogatives, we must find a way to diffuse the polarization surrounding the Supreme Court. Term limits could be one such effective way to accomplish that goal.
Academic Sources: Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown. Chapter 6.  Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown. Chapter 6.  Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown. Chapter 6.
Photo by Fred Schilling, Supreme Court Curator’s Office. “The Roberts Court.” Creative Commons Zero license.