A separate and coequal branch of government intended to be free of political sway, the American judiciary has nevertheless been the subject of partisan debate and political maneuvering, particularly at the U.S. Supreme Court. The most recent example dates back to the death of Justice Antonin Scalia in 2016 and the ensuing battles that ended with three new conservative justices on the court.
Now, with a new administration and a new party in power, the debate over the role of the court in a democratic society has been formalized. President Joe Biden has created the Presidential Commission on the Supreme Court of the United States, a group tasked with studying court reforms ranging from the number of justices to their tenure to their jurisdiction.
But will the work of the commission lead to sweeping reforms? Constitutional law scholars aren’t convinced. Nor are congressional and court leaders, who have already indicated they don’t have an appetite for significant reforms such as expanding the number of justices.
Even so, the creation of the commission is turning public attention to the questions of the court’s role in a constitutional republic, its intersection with the political system and what it means to have an “independent judiciary.”
“Whether we think the founding fathers were right or not, they believed it was important for judicial power to be separate from legislative power and separate from executive power,” said Richard Garnett, a professor at the University of Notre Dame Law School. “But we don’t always know what that means.”
Though the debate over court reform has taken many shapes, recent discussions have focused largely on the confirmation process.
When Chief Justice John Roberts was confirmed in 2005, his 78-22 vote was seen as historically narrow. But in just the last four years, the Senate filibuster was eliminated to enable Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to be confirmed with a simple majority. That move happened after former President Donald Trump and Senate Republicans could not gain Democratic support for Trump’s nominees.
Beyond that, tensions in the Senate have been rising since Scalia’s death in 2016. Senate Republicans, who then had a majority, did not advance then-Judge Merrick Garland’s nomination by former President Barack Obama, citing the upcoming presidential election.
Democrats viewed that as a political move not in keeping with historic tradition. That feud was fueled further in 2020, when Senate Republicans confirmed Justice Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg within about a month of the presidential election.
“With Ginsburg’s death and her being replaced so close to the election, I think that angered enough people then that this was seen as a necessary response to that feeling,” said Gerard Magliocca, a professor at Indiana University Robert H. McKinney School of Law.
Much of the recent public debate has focused on the concept of “court packing,” and that discussion, too, has been political. Democrats have accused the Trump administration of “stealing” Supreme Court seats to move the court to the right, while Republicans say recent legislation to expand the bench to 13 justices is an openly partisan effort to allow Biden to appoint Democratic justices.
But constitutional law scholars say the commission’s examination of term limits, mandatory retirement and court jurisdiction could bring about more consequential changes.
The idea of term limits, in particular, is garnering some support. House Democrats last year introduced the idea of an 18-year limit, with retirements staggered every two years.
Luis Fuentes-Rohwer, a professor at the IU Maurer School of Law, views term limits as a nonpartisan, easy-to-
Currently, Fuentes-Rohwer said, seats on the high court bench are viewed as “prizes” that are won almost arbitrarily based on who is in political power at the time a vacancy occurs. He rejected the idea that a lawyer or judge should be “anointed” to a life seat on the bench just because the right party happened to be in power at the right time.
Garnett pointed to two views on the term-limits debate. There’s the majority view that, for better or worse, the Constitution confers life tenure on the justice. The minority view takes a narrower approach, Garnett said, interpreting life tenure as meaning a justice doesn’t stand for election and can’t be thrown out because a president doesn’t like a ruling.
“The theory is that measures like that (term limits) turn down the political temperature of judicial nominations,” Garnett said.
If the presidential commission were to recommend term limits for Supreme Court justices, a new question would emerge: How could those limits be imposed? That, too, is debated.
According to Magliocca, some think Congress could institute term limits on its own. The idea, he said, is that while jurists could only serve on the Supreme Court for 18 years, they would remain a United States judge for the rest of their lives.
“But other people think life means life in the position that you’re named to,” Magliocca continued. “You’re not just named to be a federal judge — you’re named to be a particular kind of federal judge, and you’re in for life for that job.”’
If the latter thought prevailed, then the heavier lift of a constitutional amendment would be required, Magliocca said.
Other reforms, however, could be enacted via statute without debate. That would include changing the size of the court, Garnett said, because the constitution does not provide for a certain number of justices.
Indeed, the size of the Supreme Court bench has fluctuated over the years, the professors noted. The original bench seated six justices and at for a brief time in the Civil War era there were 10. The current number of nine has been in place since 1869.
Additionally, Congress could change the court’s jurisdiction by statute, the professors said. The commission is studying issues such as whether the court should hear more cases and whether its ability to strike down acts of Congress should be limited.
“Congress has all the power and authority, and the Constitution grants that authority to Congress,” Fuentes-Rohwer said.
Separation and checks
But the ability to make such changes without a constitutional amendment does not necessarily equate to good public policy, the professors added. Garnett questioned how an act of Congress limiting the court’s jurisdiction, for example, might impact the system of separation of powers and checks and balances.
“This is a fuzzy area,” he said. “There’s not a lot of bright lines.”
To Fuentes-Rohwer, changing the constitution isn’t always a formal amendment process. To him, “the way we amend the Constitution is on the ground.”
Specifically, Fuentes-Rohwer pointed to social movements such as Black Lives Matter, marriage equality and D.C. statehood. Such issues often yield landmark court rulings that, while not amending the constitution, amended Americans’ rights and freedoms.
Those who disagree with those rulings will call the justices activists, Magliocca noted, while those who agree will praise the court for staying true to the letter of the law. Thus, outcries against the court don’t worry him too much.
“I don’t know that there’s a huge problem right now with how people look at the court,” Magliocca said. “That could change with whatever the next big thing is — abortion, affirmative action, the usual subjects that get people worked up.”•