By Frank F Islam & Ed Crego, October 28, 2020 (Image Credit: Tom de Boor, Shutterstock, Adobe, et al)

On October 26, in the dark of the night, Republicans in the Senate confirmed the appointment of Amy Coney Barrett in order to pack the Supreme Court.

In common terminology, “packing the Supreme Court” is used to refer to adding more seats to the Court. That is not our use of the phrase.

For us, packing is not the number of judges on the Supreme Court. Packing is the nature of those judges and how they were appointed.

Barrett was pushed through, in an aggressive and accelerated manner, before the Presidential election this year, in order to ensure a clear conservative majority to vote on upcoming and future decisions.

Some would tell the Democrats that they should do nothing in response to the Republicans’ actions. They should just “grin and barrett’!

That is not our advice. Ours is that it is time to unpack the Supreme Court. We first put forward the argument on the need to reform the Supreme Court in a July 2019 blog.

James MacGregor Burns, Pulitzer Prize-winning historian and political scientist, shone a bright light on the need for reform in his 2009 book, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. In it, he argues “…as the ultimate and unappealable arbiters of the Constitution, the justices have become more than referees in constitutional disputes that the framers intended. They have gone beyond interpreting the rules — they have come to create them.”

Carl Hulse, chief Washington correspondent for the New York Times added to Burns’ critique in his 2019 book, Confirmation Bias. In an article for the Times, which drew heavily upon that book, he comments on the increased politicization of the Court, stating:

But the party label of the president who made the nomination is becoming a dependable indicator of how a Supreme Court justice will rule. And that is particularly clear on major cases rising out of the political and cultural divisions of the moment. (Think the Affordable Care Act and Roe v. Wade on abortion.)

With Barrett joining the other Trump appointees, Brett Kavanaugh and Neil Gorsuch, on the Court, the conservative judges will have a six to three advantage over the more liberal judges. This could narrow to five to four if Chief Justice John Roberts decides to side with the liberals, as he occasionally does on cases. The bottom line, though, is that the Supreme Court is now heavily tilted in the conservative direction.

The conservative direction could also be labeled the originalism direction. During her hearing, nominee Barrett stated that Judge Antonin Scalia was her mentor and asserted “His judicial philosophy is mine, too — a judge must apply the law as written.” Justice Scalia’s judicial philosophy was originalism.

When asked to define originalism in English not legalese, Barrett said, “So, in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it.”

Through his advocacy for the concept beginning in the middle 1980’s, Justice Scalia helped popularize originalism over time, and with assistance from conservative groups such as the Federalist Society, brought it into the judicial mainstream. What does this mean for how the Supreme Court will adjudicate in the future?

It is impossible to say on specific cases. But in general, the Court will rule using a very narrow and constrained view and interpretation of the Constitution, and by looking backward rather than looking around and forward.

Jamelle Bouie asks the question in his New York Times opinion column, “When we search for the original meaning of the Constitution, which Constitution are we talking about?” He points out that “The Reconstruction Constitution (including the 13th, 14th and 15th amendments) ratified after the Civil War is a fundamentally different document than the Constitution of 1787.” Although not stated directly in his piece, Bouie implies that the new court will be less likely to apply an evolutionary perspective of the Constitution.

In his New York Times piece, Nicholas Kristoff opines, “We sometimes distinguish between “liberal judges” and “conservative judges.” Perhaps the divide is between forward-thinking and backward-thinking judges.”

Kristoff proceeds to explain, “Partly because of paralysis by legislators, partly because of racist political systems, forward thinking judges sometimes had to step up to tug the United States ahead. Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, and fought racial and sexual discrimination.”

It is highly unlikely that the Republican-appointed judges on this newly constituted Supreme Court will be doing any “chipping away.” They will do nothing original. Instead, they will be stuck in originalism mode, using it as their defense for not applying their personal perspective or legislating from the bench — which in fact they will be.

Here is the truth. As Stephen Budianksy, author of Wendell Holmes: A Life in War, Law and Ideas notes, in a letter to the editor written during the Amy Coney Barrett hearings, “Judges judge, personal philosophies matter — and inescapably determine policy whether they admit it or not.”

The Republican packing of the Supreme Court and a blind allegiance to originalism are problematic. They turn the court into a partisan arena rather than a forum for hearing and resolving matters in a neutral manner.

This is made even more problematic by the increasingly conservative nature of the appellate courts. In June, Trump made his 200th federal judicial appointment since becoming president. Those conservative judges are already having an impact, rendering rulings which restrict voting rights, for example, and overturning public health laws implemented by states.

The federal judicial system has definitely skewed rightward. A strongly conservative Supreme Court could make that shift last for decades to come. It could also put the Court out of synch with the priorities and policies of the Executive and Legislative branches of the federal government and the majority of American citizens.

As Ronald Brownstein observes in his Atlantic article, “America has been here before.” Before the civil war, seven of the nine Supreme Court justice had been appointed by pro-Southern and pro-slavery Democratic presidents. In 1857, that Court delivered the Dred Scott decision, which declared that Congress had no right to restrict slavery from the territories.

When Franklin D. Roosevelt took office in 1932, seven of the nine Supreme Court justices had been appointed by Republican presidents. During his first term, those justices struck down many of FDR’s initiatives. This caused President Roosevelt to propose enlarging the Court in 1937, in what became known as the “court packing plan.” Congress considered but after considerable discussion and debate did not approve that plan.

That’s what transpired during the 19th and 20th century in terms of the alignment of the Supreme Court with the interests of the nation and its President at points in time. This brings us to the 21st century and the prospect of a Joe Biden presidency.

And, as we stated in the title of this blog at this point, it is time — there is a need to reform and unpack the court.

We are not the only ones who think it is time to do something. Charles Fried, Harvard law professor and former solicitor general under President Ronald Reagan, in his October 19, New York Times op-ed, advises that Biden should be open to enlarging the Supreme Court, but should proceed cautiously.

Fried notes that an enlargement of the Court by Biden could lead to further enlargement by successors from other parties. He goes on to state, “But to paraphrase Churchill such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down too just one: a predictable, reactionary majority.”

Fried uses the word “reactionary” rather than conservative because in his view these judges are not true conservatives who are “incrementalists.” He states, by contrast, “…this impending six-person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine…”

Fried cites where that wrecking ball might hit in the future, such as on reproductive rights and the Affordable Care Act, and gives examples of past “reactionary” decisions such as “Citizens United.” In spite of his criticism, Fried recommends that Biden should wait to play his hand until he sees whether the Court majority overplays its hand with an egregious decision. Then, if it does, his actions to enlarge to the court “…might not only be necessary, they would be seen to be necessary.”

We agree completely with Fried’s assessment of the current situation but not his recommendation. It is time — past time — to unpack and reform the court.

Former Vice President Biden has now indicated that he is open to considering making changes to the Supreme Court. In his October 25 60 Minutes interview, he stated,

If elected, what I’ll do is I’ll put together a national commission — a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack, the way in which it is being handled.

As Paul Waldman of the Washington Post observes in commenting on Biden’s proposal, “It’s a cliché in Washington, that if you want an issue to disappear, what you do is appoint a commission. And 180 days is way too long for this; they could do it in a month or two. There are plenty of reform ideas out there.”

We concur with Waldman that that are “plenty of reform ideas out there” and this analysis does not have to start from scratch. On, the other hand, we don’t think the 180 days is an unreasonable performance timeline to bring varied perspectives together to establish a shared common ground for reform moving forward.

We believe a Commission is a sound idea, as long as the Commission has a strong direction set for it upon its establishment, strict operational guidelines, and there is a commitment to implementing the Commission’s findings and recommendations quickly.

Our recommendation is that President Biden instruct the Commission that its charge is to put forward a comprehensive agenda for unpacking the Supreme Court. The goal for that unpacking should be:

To ensure a Supreme Court and federal judicial system which is equitable promoting and protecting the American democracy and the rights of all consistent with the framework established by the Constitution.

At a minimum, that unpacking agenda should include: increasing the number of seats on the court, and establishing term limits.

Why are there nine seats on the Supreme Court? Nine is not a magic number.

In its early days, as Joe Scarborough writes in the Washington Post, that number ranged from five to seven. Andrew Jackson brought the number to nine. When Lincoln was President it went up to 10. After Merrick Garland’s nomination by President Obama was not considered in 2016, the Court functioned for a while with only eight judges.

Probably the most well-known argument for adding justices to the court is one proffered by Aaron Belkin, a political science professor at San Francisco State University and founder of Take Back the Court — an organization he helped establish after the failure to consider Merrick Garland to become a supreme court justice.

Belkin proposes six more judges for a total of fifteen. His rationale is that there should be two additional judges for each of the three judges appointed by Donald Trump since he has been president.

Belkin comes at his number from the progressive side of the street. Jonathan Turley, George Washington University law professor and legal scholar, comes at it from a more academic perspective. He has been advocating increasing the size of the court for some time because, in his opinion, the current Supreme Court is too small and the sitting judges are too powerful Turley’s number is 19.

No matter what the number is. Nine may be right for a baseball team, but not for the Supreme Court. It is time for expansion of the number of seats.

Why do judges have lifetime tenure? Some legal scholars say the Constitution requires that. Others disagree.

We won’t get into the legal weeds. We will just observe that in 1787 the average life expectancy for a white male was around 38; the average age of the delegates to the constitutional convention was 42.

Life expectancy has increased substantially in the more than 230 years since the Constitution was adapted. That is no reason, however, to make the Court primarily the province of senior citizens or an unassisted living facility.

Just as it made sense to have a smaller court in the past, it makes sense to have term limits now. Term limits, like elections for office, establish a set timeline for the transfer of positions.

This would enable more careful and deliberate analysis in the succession planning process. It would eliminate the rush to judgement to make a primarily politically-based nomination and appointment in a short period, at an unexpected point in time.

18 years is the most widely recommended time frame for term limits. In late September the House Democrats authored a bill stipulating this as the maximum period on the bench for all future Supreme Court appointments.

There are a number of other Supreme Court reforms that should be considered for incorporation into the reform agenda. Daniel Epps, a law professor at the School of Law at Washington University in St. Louis and Ganesh Sitaraman, a law professor at Vanderbilt Law School, co-authored an article for the Yale Law Journal outlining a framework for court reform.

Concepts they lay out in their article include: Court expansion. Term limits. An age cap and an age floor.

Epps and Sitamaran also suggest: A larger Supreme Court that would use a lottery to bring in some justices to hear cases drawn from the 200 federal appeal court justices to hear Supreme Court cases for a week or two at a time. Jurisdiction stripping, which would entail Congress passing a statute saying that there are certain types of cases the Supreme Court would not be allowed to rule upon. And a balanced bench, which would have one-third of the court membership appointed by Democratic presidents, one-third appointed by Republican presidents, and one-third mutually chosen from the lower federal courts by those appointed judges sitting together.

Zack Stanton provides excellent information on the concepts proposed by Epps and Sitamaran in his Politico article, presenting the responses to his questions from an interview with Professor Epps. In an article for Vox, Ian Milhisser spells out some additional reforms for consideration.

These include: Requiring a Supreme Court supermajority (7–2 votes) to strike down federal laws. Allowing the President or States to defy or ignore enforcement of Supreme Court decisions. Passing omnibus legislation to override past Supreme Court decisions, and rapid implementation of new legislation to override recent decisions.

Finally, in addition to weighing in on the need for court expansion, Jonathan Turley has two other recommendations. They are: allow cameras in the court, and have Congress adopt a formal code of judicial ethics that citizens can utilize to file complaints against justices.

President Biden’s charge to the Commission should include a comprehensive list and thorough explanation of all the reform recommendations that have been advanced to date. It should also include pros and cons for each recommendation, an assessment of the conformance with the Constitution, and a societal and democracy cost-benefit analysis.

Why is developing and implementing an unpacking agenda for reforming the court essential at this point in time? There are a myriad of factors compelling action. Here are a few.

• Epps and Sitaraman call for changes in order to ensure the legitimacy of the court. Legitimacy is the willingness of the public to accept the Court’s judgments unquestioningly because of the belief that its decisions are impartial, motivated by legal rather than political reasons.
• Jonathan Turley calls for changes because the Court is “demonstrably and dysfunctionally too small”. And, to “transform the court into a more diverse and dynamic institution” that would have the “collective respect” of the American citizens.

We would add to those reasons, the one that we gave at the end of our 2019 blog:

We believe in a strong, independent and impartial judiciary. We need that for the sake of, and to preserve, American democracy.

This is why we need new rules of engagement for the Supreme Court. We need to reform the Supreme Court in a manner that ensures that it has the balance and provides the balance of power envisioned by the founders.

If it becomes merely an extension of a political party or an ideology, it puts the future of this democracy at risk. A democracy at risk cannot long survive.

The case has been made. Let the unpacking begin!