The makeup of the Supreme Court has enormous implications on the laws that are passed. Decisions made by the appointed justices affect the lives of Americans for decades. The passing of Justice Ruth Bader Ginsberg and the subsequent appointment of Justice Amy Coney Barrett has sparked numerous discussions over reforming the Supreme Court in order to ensure that it is non-partisan.
Various proposals have been put forth to reform the court in order to make certain that one party does not dominate. One of the ways a party can take control of the court is by individual justices strategically timing their retirement so that their seat gets filled by a justice of the same party, thus potentially shaping constitutional law for a generation. A popular proposal that would prevent this from happening is instituting term limits for justices. They would serve on the Supreme Court for 18 years and would then step down and serve on a lower court. These terms would be staggered so that two justices would be replaced per presidential term.
This proposition has received support in the past from both Democrats and Republicans. A leading supporter of this proposal, Rep. Don Beyer, states that its purpose is to “eliminate the arbitrary nature of Supreme Court vacancies by creating a regular, fair process that doesn’t reshape the Court for decades at a time.” The plan also does not contravene the Constitution in any way. However, a problem with this plan is that in order for sitting justices to be subjected to this rule, it needs to go through none other than the current Supreme Court; and it’s unlikely that the sitting justices would agree to term limits.
Another plan to reform the court is a “Supreme Court Lottery” that would have a panel of nine federal appeals court judges that would constantly rotate; similar to how a federal appeals court currently runs. This plan would produce numerous judge confirmations, depoliticizing the process since each appointment would not be as consequential. It would also block judges from being able to strategically time their retirement so that a justice of the same party fills their seat.
An alternative to switching up the personnel of the Supreme Court is to weaken its power. There are several ways the United States could go about doing this, including jurisdiction stripping, supermajority voting requirements, or presidential or state resistance to the Supreme Court. Another option is to expand the lower courts.
Adding Justices to the Supreme Court
The plan to reform the Supreme Court that has received the most attention—both positive and negative—is to add more justices to the Court, as the Constitution makes no mention of a specified size for the Court. Former South Bend Mayor Pete Buttigieg proposed a Supreme Court of 15 justices. Borrowing from an article by law professors Dan Epps and Ganesh Sitaraman, Buttigieg suggests that 10 of the justices would be divided equally between those associated with each of the two major parties. These 10 judges would then pick 5 additional judges. Buttigieg claims that this would “depoliticize the court.”
As with any proposal, not everyone agrees. The idea of packing the Supreme Court originated in 1937 when Franklin Roosevelt first introduced a plan to add more justices to the court. Since then, the phrase has become pejorative. Chief Justice Charles Evans Hughes had warned: “[there would be] more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned.”
In an interview with CBS’ 60 Minutes this past month, President-Elect Joe Biden made it clear that he believes the Supreme Court needs systemic change, calling the system “out of whack.” His position on court-packing isn’t 100% clear, but he said that he would assemble a bipartisan commission to review the federal court system and evaluate proposals other than packing the court.
“There’s a number of alternatives that are — go well beyond packing,” states Biden. “…The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.
“Presidents come and go,” Biden continues. “Supreme Court justices stay for generations.”