Should We Reform the Court?

The Presidential Commission on the Supreme Court of the United States had an image problem from the moment President Biden established it last April, fulfilling a campaign promise that he would examine what might be done with a Court that was “getting out of whack.” The Democratic left, hungry for payback for the two seats they regard Donald Trump and Mitch McConnell as having “stolen,” dismissed it as an effort to shield the president from having to confront their demand to add two or even four additional seats to the Court. Others simply shrugged after noting that Biden asked the thirty-four-member commission—mostly law professors, arrayed from the center-left to the center-right—not for concrete recommendations but simply analysis, for the president’s consideration, of “the principal arguments in the contemporary public debate for and against Supreme Court reform.”

The heavily footnoted 288-page report the commission delivered eight months later was received with no more enthusiasm by skeptics who seemed to forget that it was never supposed to endorse a plan of action. “Why Did Biden’s Supreme Court Commission Fail So Completely?” a headline in Slate asked. At least that was a headline. Media attention was sparse, reflecting the initial cynicism and giving the public little reason to care what the experts had to say about any of the proposals they reviewed.

That’s a loss, because the project was in fact highly instructive, although not necessarily in ways the White House or the participants intended. While ostensibly about whether and how to “fix” the Court, what the project drove to the surface was a profound debate about the institution itself. How should we think about the Court today—its extraordinary power, the agenda of its new conservative supermajority, its place in a democracy suddenly turned fragile?

Justice Stephen Breyer’s plan to retire at the end of the current term might have brought such questions to the fore in any event; a Supreme Court vacancy, along with the televised shadow play that passes these days for a Senate confirmation hearing, invites people to think about the Court and what they want from it. But in view of the deeper questions underlying the commission’s work, there is something special about Breyer’s imminent retirement, a melding of man and moment. He happens to be this Court’s last remaining link to the remarkably different one that came to an end fifty-three years ago: the Supreme Court under Chief Justice Earl Warren.

Of the six former Supreme Court law clerks currently serving as justices—a number without precedent—Breyer is the only one who clerked during what I’ve recently called the Court’s heroic age; Judge Ketanji Brown Jackson, Biden’s nominee to succeed him, was not yet born when the Warren Court ended. Breyer spent the 1964–1965 term in the chambers of Justice Arthur Goldberg. That was the term the Court decided Griswold v. Connecticut, holding that married couples have a constitutional right to use birth control and laying the groundwork for Roe v. Wade. The one-person-one-vote landmark Baker v. Carr had been decided three years earlier. Brown v. Board of Education was only a decade old. Miranda v. Arizona, giving criminal defendants the well-known warnings, lay ahead.

Those were the years, in other words, when the Court harnessed the Constitution as an engine of progress for racial minorities, for criminal suspects, and for the right of all Americans to have their votes receive equal weight. On the legislative front as well, it was a time of enormous accomplishment. The Civil Rights Act of 1964 had just become law when the young Breyer arrived in Washington. The Voting Rights Act of 1965 was enacted as his clerkship was ending.

The point isn’t that Stephen Breyer is today’s Earl Warren. Clearly he is not, whether by temperament or opportunity; the Court’s liberals have been playing defense for the past half-century. But he is, nonetheless, the Supreme Court’s last romantic, holding fast all these years to a belief in its ability to deliver fair and workable solutions to the problems Americans persist in laying at its door. Call this pragmatism. Call it justice.

“What did the Warren Court stand for?” the legal historian Morton J. Horwitz asked in The Warren Court and the Pursuit of Justice (1998), a paean to the period. Horwitz and Breyer were both born in 1938. Their contemporaries, titans of liberal constitutional scholarship like Owen Fiss of Yale and Laurence Tribe of Harvard, eventually came to staff and even dominate the nation’s law school faculties. Nearly any member of this cohort, many of them Warren Court clerks like Fiss and Tribe, might have given an answer similar to the one Horwitz offered: “Like no other court before or since, it stood for an expansive conception of the democratic way of life as the foundational ideal of constitutional interpretation.”

The commission was headed by Bob Bauer, who was Barack Obama’s White House counsel, and Cristina Rodríguez, a Yale Law School professor who also served in the Obama administration. The commissioners divided into five working groups, each group writing one of the report’s chapters: origins and history of the reform debate; membership and size of the Court; life tenure; the Court’s role in the constitutional system; and the Supreme Court’s procedures and practices. The full commission saw the individual chapters only toward the end of the process. The negotiations among the commissioners that followed enabled the report to receive their unanimous approval.

What shines through the testimony presented by younger scholars at the commission’s public hearings is how little idealism remains, or at least how little of it has been embraced by a generation for which the Warren Court exists only in books. The Supreme Court in retrenchment, in thrall to the mid-twentieth-century’s invented construct of “originalism” as the key to the meaning of the Constitution, has been the overriding fact of their professional lives. (Along with the report itself, the testimony is posted on a dedicated White House website.)

Taken as a whole, the commission’s work lets the public in on the fact that the legal academy is close to giving up on the Supreme Court. Not that this development could have remained a secret for much longer: as the spring semester began, an op-ed in the Los Angeles Times by Erwin Chemerinsky, the dean of the law school at Berkeley, and Jeffrey Abramson, a professor of law and government at the University of Texas, captured the mood with an anguished question: “What do we teach law students when we have no faith in the Supreme Court?”

There are exceptions, naturally: well-known law professors who bite their tongues as long as an incumbent justice might hire one of their students as a law clerk. But among the commission’s invited witnesses, serious and even despairing critiques of the Court from progressive scholars were so striking that one conservative witness, Curt Levey, the president of the right-wing Committee for Justice, gloated with undeniable accuracy, “It wasn’t long ago that when one heard such characterizations of the Supreme Court, they typically came from conservatives.”

Indeed, the tables have turned. But there is something deeper, even more painful at work than nostalgia for a paradise lost: an acknowledgment that what once looked like paradise was in fact a deviation from the historical norm, unlikely to be replicated in the foreseeable future. Across the span of American history, the Supreme Court has most often been the obstacle to progress; as some witnesses emphasized, for reasons of practice and structure it is highly likely to remain so. There is more at stake, in other words, than payback for stolen seats.

One commission witness, Samuel Moyn of Yale Law School, dismissed as entirely beside the point the current hand-wringing over whether the Supreme Court’s “legitimacy” is at risk. “The problem to solve is not that the Supreme Court has lost legitimacy,” he said, “but that it thwarts the democratic authority that alone justifies our political arrangements.” Moyn disparaged proposals to add seats to the Court or to abolish the life tenure of its members, steps that would leave it unchanged in its day-to-day exercise of power. Rather, he told the commissioners, the goal should be to “disempower” the Court through such means as limiting its jurisdiction or requiring that only a supermajority of justices could invalidate an act of Congress.

Jamal Greene, a professor at Columbia Law School, had something yet more drastic in mind to counter what he considers the Court’s most serious structural failing, “the disproportionate amount of power each individual justice wields.” He proposed expanding the Supreme Court to include every appellate judgeship on the federal bench, currently 179 positions. This would be the “formal” Supreme Court. The “functional” Supreme Court that would actually decide cases would consist of sixteen members drawn from the entire group to serve sixteen-year terms.

In Greene’s view, because all 179 “justices” would retain their life tenure and most would simply keep doing their current jobs of appellate judging, this structure could be put in place by statute without the need for a constitutional amendment. “Such a Court would help to diffuse the judicial power,” he said, “resting less control over the course of US law in the hands of a tiny number of unaccountable and life-tenured individuals.” Greene listed notable cases, both celebrated and infamous, decided by a single vote during the past dozen years: Citizens United in 2010, saving Obamacare in 2012, taking a hatchet to the Voting Rights Act in 2013, recognizing same-sex marriage in 2015. “The amount of power individual justices wield over American life should concern policymakers, lawyers, and citizens of all political and ideological perspectives,” he told the commission.

Not too many years ago, the idea of imposing term limits on Supreme Court justices sounded radical; the received wisdom was that life tenure was an essential safeguard of judicial independence. A 2006 article by two conservative law professors at Northwestern University, Steven G. Calabresi and James Lindgren, put in play the idea of eighteen-year staggered terms, a system that would provide two vacancies in every four-year presidential term. They noted with dismay that there had been no turnover between Breyer’s appointment in 1994 and the arrival of Chief Justice John Roberts in 2005; average length of service on the Court had jumped from 14.9 years during the period from 1789 to 1970 to 26.1 years for justices who had retired since 1970.¹

The article generated considerable conversation within the legal academy, but never really penetrated beyond its walls. While the stability of the Court was at that point a source of frustration for conservatives—President George W. Bush had no vacancies to fill during his first term and only two during his second—stability seemed to strike the general public as just fine. That changed, at least for Democrats, with Donald Trump’s nomination of Neil Gorsuch to the seat the Republicans had blocked President Barack Obama from filling for nearly a year. Why, the question went, should a president who lost the popular vote be able to install, in a seat that was not legitimately his to fill, a forty-nine-year-old man who could be expected to serve for thirty or even forty years?

Gradually, the notion of abolishing life tenure—an anomaly among the constitutional courts of the world—began to sound less like an academic thought experiment and more like something that could actually happen. It now seems the least radical proposal under consideration. Despite a lack of consensus on how to bring term limits about, the question of whether there should be term limits has morphed imperceptibly from “Why?” to “Why not?”

The commission report’s chapter on term limits is a meaty one that, while not claiming a consensus, conspicuously omits the notation in the Court-expansion chapter that “there is profound disagreement among Commissioners.” Instead, the chapter stresses the “considerable, bipartisan support” that proposals to impose term limits have attracted. With staggered eighteen-year terms, it notes, predictability would replace the randomness of vacancies occurring by death or strategically timed retirements:

This predictability, proponents argue, would strike a more appropriate balance than the current system between two important features of our constitutional system of checks and balances: judicial independence on the one hand and long-term responsiveness of the judiciary to our democratic system of representation on the other.

The report also acknowledges arguments for maintaining life tenure—for example, that to the Court’s detriment, a guarantee of two vacancies in each presidential term would “further politicize appointments and heighten the belief that Justices are allies of the President and the President’s party.” Still, it’s hard to read this chapter as doing something other than bestowing a tacit establishment imprimatur on the idea of abolishing life tenure. It marks an impressively swift migration from “off the wall” to “on the wall,” to borrow an image that Jack Balkin of Yale Law School, a commission member and longtime advocate of term limits, often uses in describing the process of constitutional change.

There are many thorny implementation questions: By statute or constitutional amendment? What to do about vacancies that arise off schedule? What constraints might be put on justices whose terms have expired? And what kind of transition period should there be? Assuming that incumbent justices would retain their life tenure, with the new system relegated to future appointments, an awkward transition could last for decades.

For those seeking a quicker fix for the present ideological imbalance on the Court, expansion—or packing, to use the pejorative that is forever attached to Franklin D. Roosevelt’s failed proposal of 1937—has obvious appeal. Two members of the commission, Laurence Tribe and Nancy Gertner, a retired federal district judge, began by favoring term limits but came to support expansion as the only effective counter to the Republicans’ manipulation of the confirmation process, as they explained in a Washington Post op-ed shortly after the report was issued. “A Supreme Court that has been effectively packed by one party will remain packed into the indefinite future, with serious consequences to our democracy,” the two wrote. “This is a uniquely perilous moment that demands a unique response.”² (Tribe’s disillusionment with the Court is acute, as he recently made clear in these pages.³)

Marking a dramatic departure from the commission’s overall stance of scrupulous collegiality, the op-ed underscored how deep the feelings have run on the expansion issue. That is in part because of the theoretical ease with which it could be accomplished; unlike term limits, which many think would require a constitutional amendment, there is no doubt that Congress has the power to set the size of the Supreme Court through ordinary legislation. Before the November 2020 election, when the Democrats’ wishful thinking suggested that they might achieve a filibuster-proof majority in the Senate, those on the party’s left fixed on expansion as a real possibility and have had a hard time letting go of the idea in the face of today’s electoral reality.

Still, as the report’s carefully worded chapter on the subject explains, there are reasons to keep talking about expanding the Court even if there is little prospect now of actually doing it. “For some proponents of expansion, even the calls for such reform could help prevent further democratic backsliding,” the report notes, adding that

an attempted expansion—or even just the prospect of expansion—could lead the Supreme Court to be restrained in its jurisprudence and more respectful of the role of the political branches, at least in the short term.

An interesting chart shows that with nine judges, the US Supreme Court is one of the world’s smallest constitutional courts. Belgium, Ireland, Spain, and the United Kingdom all have twelve judges, and Germany’s highly respected court has sixteen.

The chapter on expansion also looks at proposals for restructuring the Court, either by having the justices sit in panels, as is standard procedure on the federal appeals courts, or having them rotate on and off the Court along the lines of Jamal Greene’s proposal. The treatment of this indisputably startling idea is respectful:

We cannot conclude that the Constitution precludes rotation and panel reforms, at least as long as processes exist to ensure that a juridical body operates in some meaningful sense as a single “Court.”

(Article III of the Constitution provides that “the judicial Power of the United States, shall be vested in one supreme Court.”)

The report is more skeptical whether Congress has the constitutional authority to enhance its own power by requiring that only a supermajority of justices could invalidate a federal statute. But no matter whether Congress could impose such a requirement, the discussion of whether it should comprises one of the more novel and interesting sections of the report. On the one hand, “a central concern is that such measures would undercut judicial capacity to protect constitutional rights against majoritarian overreach.” On the other hand,

supporters of disempowering proposals counter that supermajority voting requirements actually may bolster constitutional rights…. They see an important role for the political branches in promoting constitutional freedom that courts recently, in their view, have undercut.

(Of course, conservatives already have a supermajority of six justices, so 5–4 decisions may be yesterday’s problem.)

And then, almost as an aside, the report offers this observation:

Any ultimate assessment of the systemic consequences of supermajority voting requirements will depend on one’s perspective on the role the Supreme Court and the federal judiciary ought to play within our system of government and on how well the democratic lawmaking process and its various institutions currently operate. Evaluating these proposals will hinge in large part on one’s view of the relative abilities of courts and legislatures to protect constitutional rights.

And isn’t that really the point? This passage reminds us that the Supreme Court is not an object under glass to be examined by experts in an empty room. How we think about the Court—what we think we need from the Court—is deeply dependent on how we view the functioning of the rest of the American system. That system includes not only Congress, the presidency, and the states, but also the institutions of civil society—the universities, the workplaces, the countless platforms on which claims of rights clash. To wrestle with the Court, even to criticize it passionately in the course of seeking its reform, is its own kind of fidelity to the notion that law—the Constitution in the hands of its judicial interpreters—provides the American experiment’s essential underpinning. Alienation from the Court means that help needs to come from elsewhere, if it comes at all.

No doubt, the presidential commission’s accomplishment is modest. It gives no answers. It simply lays out all the proposals for change, treats them seriously, and takes account of the best arguments for and against each one. Does that amount to “paralysis-by-analysis,” as Brian Fallon of the reform group Demand Justice charged?⁴ Maybe.

But maybe not. “If the commission was intended to be the place where Court reform went to die, its effect in the long term may be the opposite,” Samuel Moyn and Ryan Doerfler wrote in The Atlantic days after the report was released, because “ideas that were once fringe have now moved to the center of Court discourse.” It was just possible, they said, that “the attempt to contain Court reform might have helped unleash it.”

—March 10, 2022