The Great Divide: Debating Supreme Court Reform
Potential structural and non-structural reforms to the Supreme Court are heavily contested and virtually split along party lines. The two most popular reform proposals are court-packing and implementing term limits. The constitutionality of the former notion is unclear. Though Congress has passed various acts to change the number of justices, this number hasn’t exceeded ten. Additionally, the idea that court-packing is “necessary and proper” typically depends on one’s views on its recent rulings. The latter notion is unconstitutional, requiring an amendment to Article III’s clear articulation of life tenure for justices providing that they “hold their Offices during good Behaviour.”
Proponents of Supreme Court Reform
Supporters of Supreme Court reform point to the drastic politicization of the federal judicial branch in recent years. As outlined by early political writings, such as Federalist 78, the Supreme Court was intended to be apolitical and isolated from the fluctuating sentiments of the American populace. However, this has evidently changed. Within the past four years, the institution erased half a century of precedents, eliminating the constitutional right to abortion. Weeks after the school shooting in Uvalde, Texas, the court issued an opinion that posed barriers to gun regulations. In a major environmental case, the court curbed the EPA's ability to combat climate change, and in two religion cases, the justices minimally noted the principle of church-state separation Hence, adding justices would ensure that the court doesn’t radically shift from one side of the spectrum to the other, depending on presidential nominations.
Moreover, term limits would ensure that justices are in touch with the American people, adding a much-needed boost to the branch’s credibility. On one hand, tenure limits would prevent justices from developing a sense of entitlement by limiting their ability to acquire influence over multiple decades. On another hand, this reform would allow more presidents to make appointments, keeping the branch ideologically aligned with the American people (and putting an “expiration date” on any supermajority). This would alleviate the crisis of prolonged tenures; the average justice’s term is now longer than it has been at any other point in U.S. history.
The most common proposal for Supreme Court reform is an 18-year nonrenewable limit, as it would allow justices to fully develop jurisprudence. Fix the Court, an advocacy group that seeks court reform, suggests that the 18-year period could be staggered so that a vacancy would open up every two years. This model would solidify alignment with public views, as two new justices would be nominated each presidential term.
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Proponents of the Supreme Court’s Status Quo
Those who wish to maintain the court’s current structure are skeptical of the political motivations behind reform and are focused on upholding the court’s precedent. Court-packing plans have historically faced backlash, viewed as political conniving. Even FDR’s plan to appoint six additional justices to the Supreme Court alienated much of the Democratic Party; blatant attempts at centralizing political power resonate poorly with a democratic populace. Additionally, arguments about the political balance of the court are somewhat fruitless; “liberal” and “conservative” have fairly different meanings in terms of judicial philosophy.
Preserving the court’s current structure ensures stability and integrity. It allows for a predictable model and avoids drastic fluctuations in the court's composition. By jeopardizing this consistency, political parties will only match the court-packing plans of their counterparts when given the chance, subjecting the judiciary to Congress or the President. Even Joe Biden verbalized concerns with court-packing in 2019. The President stated that “we begin to lose any credibility” if “we add three justices, [and the next time] we lose control, they add three justices.” Why jeopardize the integrity of a 240-year-old institution? Furthermore, nine justices are simply more efficient, as there are fewer delays attributed to debates and other difficulties in reaching consensus.
In regards to term limits, some argue that they inadvertently heighten political polarization by increasing the frequency at which debates occur. After all, each time a Supreme Court Justice needs to be appointed and approved, a national dispute erupts. Such a constitutional amendment is simply divisive and unrealistic.
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