Should we restructure the Supreme Court?

A version of this Voter Vital was first published on March 2, 2020. It was updated on September 22, 2020.

The Vitals

The death of Justice Ruth Bader Ginsburg and President Trump’s determination to put a successor in place quickly has focused new attention on the Supreme Court. In recent presidential campaigns, Republicans more than Democrats have made selecting federal judges, especially Supreme Court justices, a top issue. Some Democrats are talking about enlarging the court if the Senate confirms a Trump nominee and Democrats take control of the White House and both legislative chambers. Earlier in the campaign, some Democratic candidates proposed  changes to the size of the Supreme Court and the tenure of its members.

Congress hasn’t changed the court’s size—nine justices—since the mid-19th century. The justices, like about half the roughly 2,000 federal judges, have tenure during what the Constitution calls “good Behaviour”—essentially for as long as they want to serve, subject only to rare legislative impeachments and removals. Unsettled is whether Congress could limit justices’ tenure on the Supreme Court as long as it preserves their tenure as judges by reassigning them to other federal courts.

• It typically takes a crisis to generate support for major change to the federal courts, but some Democrats have vowed to push the issue if Trump fills RBG’s seat after Republicans blocked Obama’s nominee in 2016.

• The Constitution specifies no size for the Supreme Court. Congress settled on nine in the late 1860s to match the number of judicial circuits.

• Supreme Court justices have been serving longer terms, with a median term length of about 26 years since 1981.

A Closer Look

A review of competing proposals

Interest groups
and candidates offer both partisan and non-partisan proposals.

Adding Seats as Payback:

In the partisan approach, Democrats—once they are in control of the White House and Congress—would enact a statute adding two seats to the court, whose Democratic appointees would counter the most recent Republican appointees. Former Attorney General Eric Holder raised the prospect in March 2019, as did progressive groups such as Take Back the Court  and Demand Justice .

Advocates are frank about their motives. Republicans, they say, stole a court seat from the Democrats in 2016 when they refused to consider Merrick Garland, Obama’s nominee to replace the late Antonin Scalia, and then in 2017 filled the vacancy with Neil Gorsuch on a party-line vote. Add-seat advocates also point to Brett Kavanaugh’s controversial confirmation amid claims that neither the Justice Department nor the Senate fully investigated charges of misbehavior from his high school days and beyond.

More broadly, critics note that presidents who came to office despite losing the popular vote (Trump, decidedly) appointed four of today’s five conservative justices – and Senate confirmation of RBG’s successor would make it one more. And while senators historically have confirmed justices by margins large enough to represent a majority of voters even given the Senate’s constitutional malapportionment, the senators who confirmed Justices Clarence Thomas, Gorsuch, and Kavanaugh represented less than half the population. A court so constituted would arguably face a legitimacy crisis were it to start overturning legislation enacted by a popularly elected Democratic president and Congress. (I offered that analysis here, while rejecting current calls to increase the court’s membership.)

A Supreme Court of 15 justices

Other proposals have at least a veneer of nonpartisanship. They reflect an attitude of “do something” about the court short of a partisan restructuring. Former South Bend Mayor Pete Buttigieg, a contender for the Democratic nomination in 2020, proposed a Supreme Court of 15 justices. Borrowing from a draft law review article, he suggests 10 justices divided equally between those “affiliated with” one or the other of two major parties; those 10 would select five more. That arrangement, he claimed in the October Democratic debate, would “depoliticize the court,” adding that “We can’t go on like this, where every single time there is a vacancy, we have this apocalyptic ideological firefight over what to do next.” (The same draft law review article also proposed a rotating nine-member court drawn by lot from the 170 or so court of appeals judges, but this proposal has received little attention.)

Time limits on justices

More common nonpartisan proposals would impose term limits on justices. A bipartisan group of judges and law professors began to push this idea in 2009, and long-time and highly regarded political analyst Norman Ornstein has promoted it at least since 2014 and renews the call regularly.

Proponents suggest an 18-year term followed by, if the justice wishes, service on a lower court to honor the constitutional promise of good-behavior tenure. Fully implemented, that arrangement would produce a Supreme Court vacancy every two years (barring unanticipated openings). That, say advocates, would lower the temperature of confirmation battles. Both sides would realize that the nominee would not be on the Court for the quarter century or more that has become the norm. What’s more, regular turnover would deter the search for young, less-experienced nominees who might serve two or more decades, and it would bring new blood more often to an institution that was created when average life spans were much shorter than now.

Major questions

Is there any appetite for changing the Supreme Court?

It typically takes a crisis to generate support for major change to the federal courts. Until now there has been little evidence today of public appetite for such change, but the rush to fill RBG’s seat late in the election year appears to have whetted the appetite. The size of the Supreme Court came up, albeit obliquely, in the 2019 Democratic debates, in particular during the 12-candidate October debate, and the commentariat occasionally raises the matter. Several Democratic senators in a Supreme Court brief pointed to a May 2019 Quinnipiac University national survey that they claimed showed “a majority now believes the ‘Supreme Court should be restructured in order to reduce the influence of politics.’” But the survey question gave no definition of “restructured” and supporters registered just a bare majority. A Marquette University Law School national survey in October 2019 also included a long bank of questions about the court. Most relevant, it found that nearly three-fifths opposed “increase[ing] the number of justices,” and that even among committed Democrats (as opposed to “Lean Democratic”), support was evenly split. By contrast, nearly three-quarters favored term limits regardless of party.

As the presidential campaign kicks into higher gear—and with the court now hearing arguments and eventually issuing decisions on polarizing issues such as transgender rights in employment and the fate of non-citizens brought to the country as children—proposals to enlarge the court or trim its members’ tenure might gain traction and move the campaign beyond Republican boasts about filling vacancies and Democratic pledges to appoint Roe-sympathetic justices.

Would enlarging the Supreme Court produce quid pro quos?

Adding seats to the court could precipitate a game of tit-for-tat. Upon gaining control, one party would expand the court, and after the next election, the other party would slim it back down to size or enlarge it even more. Such “rinse and repeat” politics would be costly for the court, creating if nothing else, full employment for the court’s carpentry shop as it reconfigured the courtroom’s bench every few years.

Is anything sacrosanct about a nine-seat Supreme Court?

The Constitution specifies no size for the Supreme Court, which has varied from five to 10 justices, depending on the number of judicial circuits. A major job of Supreme Court justices until the late nineteenth century was to travel about their assigned circuits, trying cases in the old circuit courts, the system’s major trial court until 1891. Congress settled on nine circuits in the late 1860s and thus nine justices.

Despite this nine-by-happenstance, some speak of a nine-member court as a Goldilocks ideal—not too big, not too small. In opposing Franklin Roosevelt’s 1937 plan to add justices to the court, Chief Justice Charles Evans Hughes warned about “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.”

Of the 54 state and territorial high courts, 29 have seven members. Only 10 have nine, and none has more than nine. Judgeships on the 13 federal courts of appeals range from six to 29 with a median size of 13, but those courts do almost all their work in randomly selected three-judge panels. Having three-justice panels decide cases for the entire Supreme Court would be unworkable because losing litigants would inevitably appeal a panel decision to the entire court, prompting satellite disputes about whether to rehear the case—and would probably violate Article III’s mandate for “one Supreme Court.” The United Kingdom’s 12-member Supreme Court works mainly in panels. The Canadian Supreme Court and Australian High Court have nine and seven judgeships, respectively.

Is the proposal to add seats to the Supreme Court and to have some justices appoint others constitutional? Is it practical?

Congress clearly has the constitutional authority to change the size of the Supreme Court. And a statute prescribing some form of political party affiliation would withstand constitutional scrutiny. Section 251(a) of Title 28 provides that no more than five of the nine U.S. International Trade Court judges may “be from the same political party.” The website of the Trade Court, though, makes no mention of its party requirement, a reflection perhaps of a general distaste for the idea.

Less debatable is whether the Constitution would countenance some justices appointing other justices, given Article II’s mandate that the president, with Senate approval, appoint “Judges of the supreme Court.” It leaves Congress the discretion to “vest the Appointment of such inferior Officers, as they think proper,” in the president, the courts, or executive branch officials.

The 5-5-5-member Court plan would likely strike most legislators—two professors’ heavily footnoted pleas not withstanding—as Rube Goldberg judicial-machinery tinkering that would undermine lines of accountability for the justices selected by the other justices.

What would term limits accomplish?

Justices have been serving longer terms. This table groups justices appointed since Congress settled on a nine-member Supreme Court.

Term limits and regularly recurring vacancies might tone down the epic Supreme Court confirmation battles that have occurred roughly twice every eight years. But they might instead make knock-down, drag-outs a recurring part of the political landscape. An election preceding the end of a swing justice’s 18-year term could thrust the court into election year battles more intense than we’ve already seen.

And what about unanticipated effects? Would, for example, justices whose terms are about to end be more willing to hear a case on which normally they might defer action to let the issue percolate in the courts of appeals?

The bigger question

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

Blame rising partisan polarization for the broken process. But Republicans should bear extra responsibility for their unprecedented stonewalling of President Obama’s judicial nominees after Republicans took control of the Senate in 2015. GOP senators took hostage Justice Scalia’s vacated seat and have used verbal contortions to justify confirming a nominee for any 2020 vacancy that might occur. That Senate in 2015-16 also confirmed far fewer appellate and trial court judges than did Senate majorities during divided government in previous administrations’ final two years. That obstructionism set up the Trump administration’s confirmation blitz—especially at the Supreme Court and court of appeals levels—seating 53 very conservative appellate judges for which the 2016 popular vote arguably provided no mandate.

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st-century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.