Democrats are still on a bit of a sugar high following 40-House and 7 governor pick-ups in the midterm elections. But the euphoria dissolves on pondering the brick wall of the GOP’s young lifer majority on the Supreme Court, which can invalidate a broad range of progressive reforms with a 5-4 majority. The Senate we can change with smart politics and a little luck. But flipping, or even restoring some balance to the high court, will likely require more drastic action.
Most of the public debate concerns two possible reforms — changing the size of the court and or the length of terms for the justices. Changing the size of the Supreme Court has been accomplished a few times by congressional statutes. Term limits, however, would require a constitutional amendment.
Clare Malone discusses the possibilities at FiveThirtyEight, and notes,
Former Supreme Court clerk and law professor Ian Samuel is more certain about court-packing: He sees it as an unmitigated good and has written about its potential upsides. “You could amend the constitution to fundamentally change the way the court works — that’s very hard to do. You could try impeaching justices, but that would also be very hard to do and not obviously justifiable,” he said. “Then you have this idea of changing the size of the Supreme Court that has this wonderful virtue that it’s just doable with ordinary legislation the next time you happen to hold political power in the elected branches of government.”
OK, he makes it sound a little too easy. FDR caught hell for trying the same thing, although his efforts did ultimately pay off, by influencing public opinion enough to sway the high court to tilt leftward. Malone adds:
But the political feasibility of the court-packing plan remains a concern. [Rep. Ro] Khanna, one of the few, if not the only national elected official to come out in favor of a fundamental revamping of the court, says that what’s needed is a reframing of the issue, one that moves away from the historically tainted term “court-packing.”
In a war of terms between ‘court-packing’ and ‘court reform,’ however, I wouldn’t bet on the more vague term, ‘court reform’ carrying the day. ‘Court-packing’ just sounds like too much of a naked power grab. Unfortunately, it’s the term constituents would remember and the one the media would repeat.
Malone notes that “one of Khanna’s proposals is an 18-year term limit for justices, after which they would be sent back to sit on circuit courts. “Most Americans love term limits,” he said.”
Polls indicate that Americans do like term limits as a general principle, though not so much for their individual elected officials. Ed Kilgore cites a C-SPAN poll, which indicates that “By nearly a three-to-one margin, respondents favored some sort of restriction on SCOTUS tenure (as opposed to the current lifetime appointments).” In any case, ‘term limits’ is an easier sell than ‘court-packing.’
But term limits require a constitutional amendment. People do seem reluctant to mess around with the Constitution these days, despite the fact that it has been amended 27 times (six other amendments passed by congress failed ratification in the state legislatures). Most of the 27 amendments seemed unlikely to be enacted at some point. Yet now they are the law of the land.
Fundamental progressive reforms are always highly problematic, but you have to begin somewhere. What has changed for the better is that social media provides a powerful tool for shaping public opinion — a tool that wasn’t available to help pass fundamental reforms in the past.
So it’s a choice between enlarging the Supreme Court by congressional statute or enacting Supreme Court term limits by constitutional amendment. Both are daunting challenges, though maybe more realistic than hoping Chief Justice Roberts or Justice Gorsuch will somehow become more liberal, as did Earl Warren and David Souter.
I like term limits and court packing. We need both.
Nothing prevents you from doing both as a package.
J.P. Green is right. Whether or not the Supreme Court should be expanded, it will be impossible to propose this, as FDR did, without the voters suspecting a power grab, as they did with FDR. In such a deeply and evenly divided country, it would be almost impossible to get two-thirds of the state legislatures to ratify such an Amendment. The two amendments in recent history which failed, Congressional seats for D.C. and the Equal Rights Amendment, failed primarily because of public distrust of the federal government. No Constitutional amendment is likely to be ratified until we cure that distrust.