A Call for Supreme Court Reform

By  Tina Huang ‘22

In light of Ruth Bader Ginsburg’s death, President Trump has nominated Amy Coney Barrett to the Supreme Court. If Barrett ends up replacing Ginsburg on the Court (and Trump wants this to happen before the November 3 presidential election), there will be a 6-3 conservative, Republican-appointed majority.

So, let’s say Barrett does become the next SCOTUS justice according to Trump’s timeline. Considering Barrett’s connection to People of Praise, a charismatic Catholic organization whose internal structure remains mostly secretive, and her contrasting views from Ginsburg’s—from reproductive freedom to gun rights—this isn’t ideal. But let’s also say that Biden wins the election. What would happen if the Democrats take power in November? The Court seems lost for a generation to come. What do we do now? Democrats are already looking ahead to this scenario in January 2021, and some have one specific plan in mind: expanding the Supreme Court.

Before we begin, let’s look at the confirmation process that would make Barrett a justice before the election:

First, to get confirmed on the Supreme Court, a nominee has to go through a pre-hearing investigation, which includes a background check and meetings with senators (the latter is not required, per se, but it is expected of most nominees and has already begun). 

Following that investigation, the nominee attends public confirmation hearings. This is probably the most familiar part of the process: in a televised hearing, the nominee answers questions posed by the Senate Judiciary Committee. That committee, controlled by Republicans, will probably send Barrett off to the Senate floor for a vote. From there, if the full Senate votes in favor of Barnett, she will replace Ginsburg. 

Previous Justices Ginsburg and Sandra Day O’Connor were confirmed to the court in 42 and 33 days, respectively, so the length of Barrett’s confirmation process wouldn’t be unheard of. However, according to The Guardian, “The difference between Barrett’s likely confirmation and those of Ginsburg and O’Connor is that the latter two were not appointed a matter of days before a presidential election.” It’s bound to be a unique confirmation cycle, for sure.

Alright, so Barett receives a majority vote in the Senate (by power grab or not from the Republicans) and lands a seat on the Supreme Court right before the election. Then, let’s speculate, Biden becomes President. What do Biden and his presumably Democratic Congress do?

If Congress does decide to change the size of the courts, this wouldn’t be the first time. In 1866, Congress was at a war with President Andrew Johnson and passed the Judicial Circuits Act, which lowered the size of the court from nine to seven and barred Johnson from appointing new justices. That measure remained in place until Ulysess Grant was elected in 1868, when the number went back to nine. 

However, Jeff Greenfield from Politico noted that “there are and have been ‘institutional’ concerns that have trumped the simple exercise of political power.” When President Franklin Roosevelt wanted to add justices to the court in 1937 (the Court at the time was not too partial to his New Deal legislation), even his own party rejected the idea. Despite winning the 1936 election in a landslide and having a Democratic majority in Congress, FDR couldn’t get his proposal past. Then-Chief Justice Charles Evan Hughes even wrote a (somewhat snarky) public letter against FDR’s idea: “The court was not overworked at all, thank you very much.”

So, if FDR at his peak popularity couldn’t do it, could Biden? Is it possible to restructure the courts on a partisan vote during such a dire time? Should we actually pack the courts in the first place? 

It’s important to note that while FDR’s idea didn’t pass, he had supporters—most notably, Progressive Senator Robert La Follette.

La Follette pointed out that the Constitution never said anything about the Supreme Court’s size. He believed this to be a “check” on the Supreme Court “which the constitutional fathers with almost prophetic foresight provided to prevent the arbitrary obstruction of the popular will by a judiciary which has lost touch with the needs and aspirations of the people.” 

“The court has been ‘packed’ for years,” La Follette said. “‘Packed’ in the interests of Economic Royalists, ‘packed’ for the benefit of the Liberty Leaguers, ‘packed’ in the cause of reaction and laissez-faire.” Look at the Courts today. Look at Citizens United. He’s right.

Let’s also note that reforming the courts doesn’t only mean adding justices. There could also be term limits. A new justice could be added to the court every two years, so that each President gets to appoint two justices.

And all of this could happen without amending the Constitution. 

Article III states that judges and justices “hold their offices during good behavior,” which historically has been understood to mean that they will hold office until death. However, as Gabe Roth from USA Today pointed out, “There’s no particular reason the ‘office’ referred to could not be interpreted as the office of federal judge.” This interpretation argues that after serving on the nation’s most powerful court, justices can still work in other parts of the judiciary system. They don’t have to serve on the Supreme Court for life, though.

It’s been stated time and time again, but serving for life is outdated. Why did we put so much faith in Ruth Bader Ginsburg, one woman, to protect our democracy? By expanding the courts and adding term limits, there would be less predictability in court decisions, yes, but we would have a more diverse set of justices. We don’t need to anxiously watch by as our current President nominates someone just a month before election day. And we don’t need nine people. There’s nothing special about that number.