Supreme Court-Packing and Norms as an Alternative to Reform

Maxwell Potluri, CLS ’22

For the second time in two years, the Supreme Court is the focus of public attention regarding a contentious confirmation hearing. In 2018, Justice Brett Kavanaugh’s confirmation highlighted the increasingly partisan battle over the nation’s highest court. Now, the Senate has confirmed Judge Amy Coney Barrett to the seat vacated by Justice Ruth Bader Ginsburg, which promises to tip control of the Court decisively in favor of its conservative wing. Judge Barrett’s nomination was particularly contentious because it came just before the 2020 Presidential Election. Her confirmation raises the question of how Democrats, should they win power, will attempt to deal with a more conservative Supreme Court.

Proposals for Supreme Court reform are not new — indeed, one of the more radical proposals is for Democrats to expand or “pack” the Court, something President Roosevelt attempted and failed to do in the 1930s. However, the Court’s size is not fixed: in the 1800s, its membership grew and shrank before reaching its current composition of nine justices.[1] Democratic president-elect Joe Biden has so far remained elusive on whether he would be willing to pack the Court. Despite calls from the progressive left, Biden has only gone so far as to propose a bipartisan commission of scholars to study possible judicial reform.[2] Liberal proponents of court expansion argue that Republicans are already effectively packing the courts, citing Senator McConnell’s tactics blocking President Obama’s nominations (including Judge Merrick Garland), and arguing that it would be “political suicide” for Democrats not to respond in turn.[3]

However, there are grave political implications inherent in any attempt to expand the Court. Roosevelt’s court-packing debacle, a response to the Court striking down New Deal legislation, was a political power play cloaked as an institutional reform.[4] Today, a court-packing scheme would be a similar move. It could come at the cost of increased partisanship and major political upheaval.[5] And while an expanded court might satisfy the immediate policy goals of liberals, the Court’s decisions on the most contentious issues would have less authority, and the consequences for the rule of law would be unpredictable.[6]

Legal scholars have suggested many Supreme Court reforms intended to address some of the perceived underlying issues with the Court.[7] One proposal is to replace life tenure with a system of staggered, non-renewable eighteen-year terms; arguably, this system could solve or mitigate three major problems: strategic retirements, incentives for presidents to appoint younger nominees, and the randomness of Supreme Court appointment distributions among presidents.[8] Whereas court-packing schemes inherently seek the advantage of one political party, proponents of the term limit system argue that it would be “party and ideology neutral” over time.[9] Such a change could reduce the political desires for court-packing, and would address the Court’s oft-criticized life tenure appointments.[10] However, term limits are certainly constitutionally suspect, as Article III makes no mention of them.[11] They also run contrary to the thought of at least some of the founders, who emphasized that the necessary constraint on the independent judiciary should be the requirement of “good behavior.”[12]

To implement such a reform would likely require a Constitutional amendment rather than a simple statute — a significant barrier to practical implementation.[13] An alternative, typically dismissed but worthy of consideration, is that the Court itself adopt a self-governing norm that justices retire after eighteen years of service, either through its own internal traditions or through the nomination procedure.

Since Supreme Court term limits may be unconstitutional if created by statute, and because the passage of a Constitutional amendment creating term limits is unlikely, perhaps the best chance at reforming the Court (without expanding its membership) is the development of such norms. If the only alternative begins to look like the effective subjugation of the Court to legislative and executive will via court-packing, the justices may choose instead to preserve their institution’s independence in an atmosphere of growing political polarization, scrutiny, and public pressure by creating an internal, self-governing norm for principled retirement. While it is true that this approach would likely have a major collective action problem initially, it could work. For instance, the Second Circuit has established a norm that all judges take senior status on the first day that they are eligible.[14] Congress could further encourage the development of this norm on the Supreme Court by enticing justices to retire at a certain time through the offer of more generous retirement benefits to the justices who desire once they have served eighteen years.[15]

Such a development of retirement norms may be impossible, however, for a Court and a country so accustomed to life tenure on the high court that the retirement of Justice David Souter “at the relatively youthful age of 69” came as a surprise.[16] For now, it remains to be seen whether Amy Coney Barrett’s confirmation will serve as a catalyst for a greater partisan fight over the Court’s future in the upcoming presidential term.

 

[1] See Kyle Sammin, It’s Definitely Time To Pack The Supreme Court, But For Entirely Practical Reasons, Federalist, (July 13, 2018), https://thefederalist.com/2018/07/13/definitely-time-pack-supreme-court-entirely-practical-reasons/.

[2] See Charlie Savage & Katie Glueck, Biden Punts on Expanding the Supreme Court, Calling for a Panel to Study Changes, N. Y. Times, (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/us/politics/biden-supreme-court-packing.html.

[3] Michael Klarman, Why Democrats Should Pack the Supreme Court, Take Care, (Oct. 15, 2018), https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court.

[4] See Bob Bauer, Don’t Pack the Courts, Atlantic, (July 6, 2018), https://www.theatlantic.com/ideas/archive/2018/07/dont-pack-the-courts/564479/.

[5] See Ryan D. Doerfler & Samuel Moyn, Reform the Court, but Don’t Pack It, Atlantic, (Aug. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/.

[6] See Bauer, supra note 4.

[7] See generally Roger C. Cramton & Paul D. Carrington, The Supreme Court Renewal Act: A Return to Basic Principles, in Reforming the Court: Term Limits for Supreme Court Justices 467 (Roger C. Cramton & Paul D. Carrington eds., 2006).

[8] See James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 Va. L. Rev. 1093, 1096–97 (2004).

[9] Id. at 1144.

[10] See Gregg Easterbrook, The Case for Supreme Court Term Limits, 26 Intl. Soc’y Barristers Q. 373, 374 (1991) (arguing that the only comparable institution of power existing in America where individuals become “vested in the gray and unremovable” is the Catholic Church).

[11] See U.S. Const. art. III, § 1.

[12] The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[13] See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L. J. 148, 173 (2019).

[14] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y 769, 874–75 (2006).

[15] See Kevin T. McGuire, Are the Justices Serving Too Long – An Assessment of Tenure on the U.S. Supreme Court, 89 Judicature 8, 15 (2005).

[16] Russell Berman, No Other Western Democracy Allows This, Atlantic, (Sept. 25, 2020), https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/.