North Texas Daily

The case for expanding the Supreme Court

The case for expanding the Supreme Court

The case for expanding the Supreme Court
November 08
12:00 2021

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

This statement, spoken by Supreme Court Justice John Roberts in a rebuke to comments by former President Donald Trump, expresses a sentiment that the American public and legal community have widely supported for the better part of a century: politics and law should be separate domains, and judges/justices should be able to issue rulings without influence from partisan bickering. With this philosophy of judicial independence, no actors, governmental or private, should be able to influence interpretations of the law, and judges should strive to keep their own political views out of their rulings.

With the possibility of reforms now being seriously considered at the highest levels of power in the U.S., let’s take a look at the best plan we’ve seen thus far. This plan, known as the balanced bench or the 5-5-5 plan, would drastically reshape the Supreme Court.

Despite Roberts’ defenses, recent events have made it abundantly clear we’re currently failing to live up to this lofty ideal. The Senate’s response to the nominations of Merrick Garland, Neil Gorsuch and Amy Coney Barrett was highly influenced by partisan divides. Brett Kavanaugh’s 2018 nomination was thrown into disarray by Christine Blasey Ford’s allegations of attempted sexual assault. His defense in front of the Senate Judiciary Committee was so obviously politically charged that over 2,400 law professors from across the nation signed a letter denouncing him in an unsuccessful attempt to convince the Senate to vote against his confirmation.

Most recently, the high court’s decisions to gut the voting rights act and allow Texas’s blatantly unconstitutional near-total abortion ban to go into effect while lower courts dispute over its legal merits have been widely criticized and highly controversial. In addition to causing the Supreme Court’s lowest approval rating in 20 years, these incidents, among others, have helped spark an ongoing conversation about potential reforms. These reforms include reducing the court’s partisan influences, with numerous politicians and legal experts offering a myriad of ideas and President Joe Biden signing an executive order last April creating a commission to study potential changes.

But what exactly would the balanced bench proposal do? The basic idea is that the court would be expanded to 15 justices. The first five would be nominated by Democrats, the next five by Republicans and the final five would be chosen from the circuit/district courts by either a unanimous or supermajority vote of the first ten justices, serving on the bench for one year before going back to their original positions.

Many commentators have referred to this as a form of court-packing. While technically true, the term has a negative connotation, assuming it would make the judiciary less just and more political, while this plan does exactly the opposite. In fact, part of the brilliance of the balanced bench proposal is how, even beyond the basic description of the partisan balance, every nuance only furthers its effectiveness.

Take, for example, the fact temporary justices would be voted on two years in advance, well before the docket of cases would be decided upon. The one-term limit would keep the court’s internal politics from getting messy. Also consider that since no one justice will substantially affect the partisan leanings of the court, the importance of individual confirmations and the impacts of sudden deaths/strategic retirements would be substantially lowered, making the messy battles we saw over Trump’s nominees a thing of the past.

And finally, since each party would nominate the same number of justices no matter what, the composition of the court would no longer be an issue for presidential or congressional elections. All of these issues with the Supreme Court would be solved with a single neat and tidy proposal. But of course, any plan this ambitious will have its critics.

Even when excluding those that deny that the Supreme Court’s partisanship is even an issue (it absolutely is), the balanced bench plan has received a fair number of objections. One such critique, raised in a piece by Fix the Court, an advocacy group lobbying for other methods of reform, is that the partisanship of certain justices would be legally recognized and sanctioned.

However, with the current system already having few effective consequences for justices’ demonstrations of partisanship, and with the proposal ensuring that the court’s partisanship would always be effectively balanced, having the politics of individual justices “be ‘de jure’ rather than ‘de facto’” would solely be a difference of semantics. Other criticisms come in the form of other potential reforms.

The most common among these — working term limits into the current court’s structure — would increase turnover and solve the issue of strategically-timed retirements. It would, however, fail to reduce the significance of individual justices by otherwise keeping the status quo for confirmations. Having Congress selectively reduce the Supreme Court’s jurisdiction has promise, but could easily lead to troublesome unforeseen circumstances. After all, the court orders that enforce contentious laws don’t write themselves.

But perhaps the most significant issue with the balanced bench is its questionable constitutionality, more specifically in regards to the Appointments Clause, which gives presidents the power to nominate Supreme Court justices. The problem of potentially violating the Constitution isn’t unique to this specific proposal. Term limits and jurisdiction stripping are both often criticized on similar grounds, but it still could doom the entire scheme before it’s even implemented. While the proposal’s original authors have been optimistic in their outlook on this question, others have firmly disagreed, leading to a lack of consensus on whether this plan could even be put in place without a constitutional amendment.

Even in the worst-case scenario, would requiring an amendment necessarily be a permanent death sentence? While a move in the short-term is unlikely, the current climate of discussing reforms could cause demands for reform to increase.

Indeed, in an essay published in the Harvard Law Review, the authors of the balanced bench proposal believed the odds of garnering enough support was high enough that “those who study the Court and the Constitution should continue to do the work of thinking about possible Court reforms so that political leaders can be ready when the issue returns to the agenda.”

And who knows? If those conversations happen, the balanced bench could be a topic of interest. Perhaps Democrats could use the threat of more traditional court-packing to encourage the GOP to agree to judicial reform, as some have already advocated for. In effect, the 5-5-5 plan could be a neutral compromise. This is admittedly speculation, but with judicial reforms being well within the realm of possibility in the long-term, it’s worth thinking about what we want our ideal Supreme Court to look like. We must keep this plan in mind, so that when future partisan battles over the high court are inevitably raged, we can confidently put forward the best solution for our justice system, for our democracy and for our nation.

Featured Illustration by Miranda Thomas

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Ian Cropper

Ian Cropper

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