Supreme Dysfunction: Why Packing the Court Won’t Fix Its Problems
Making the Court Less Partisan And Restoring Judicial Restraint Requires Changes To How The Court Selects And Decides Cases
In Federalist Paper 78, Alexander Hamilton famously discussed “the natural feebleness of the judiciary” as he argued for the new Constitution’s Article III branch of government. In Hamilton’s view, the Constitution provided for a judiciary that “may truly be said to have neither FORCE nor WILL, but merely judgment.” The concept of unelected judges imposing their will and policy choices, while declaring the elected branches powerless to legislate otherwise, was not one that Hamilton thought realistic.
For the better part of American history, Hamilton’s judgment proved largely correct. But over the past century, and especially the past several decades, the judicial branch has dramatically increased its power and role in American life. The Supreme Court in particular has made policy decisions limiting the elected branches’ ability to enact laws governing healthcare, environmental protection, and economic policy that profoundly affect all Americans.
Perhaps even more concerning, the Court has increasingly imposed its will on matters relevant to federal election outcomes. The Court has invalidated campaign finance laws passed with bipartisan support, allowing explosions of corporate money and secret donors to influence our elections. The Court similarly invalidated large parts of the Voting Rights Act as reauthorized by Congress in 2006 with an overwhelming House majority and unanimous vote in the Senate. The Court even intervened to effectively decide one presidential election, and was called on to do so again last November.
The Supreme Court’s ever-growing footprint, coupled with the Republican Party’s success at engineering a 6–3 conservative majority by changing and abusing Senate confirmation rules, has led to increasingly strident calls for Democrats to pack the Court with new Justices. But shifting the Court’s balance with added Justices is unlikely to return the Court to the more modest role that our founders intended, or to reverse the Court’s dangerous trend toward becoming an increasingly partisan institution. Instead, meaningful, lasting reform will require changing not just the Court’s composition, but the way it selects and decides cases. Fortunately, the model for doing so is already a part of our federal court system.
THE CIRCUIT COURT MODEL FOR SUPREME COURT REFORM
The federal judiciary has three primary layers: (1) district courts, which are federal trial courts; (2) circuit courts, which review district court decisions on appeal; and (3) the Supreme Court, which has discretionary jurisdiction over circuit court and state high court decisions. Unlike the district and circuit courts, where litigants are entitled to have their day, four of the nine Supreme Court Justices must agree to consider a case, and the Court declines the vast majority of requests it receives.
The circuit courts therefore have final say in most federal cases, and they operate quite differently from the Supreme Court in two major ways:
First, each circuit court case is randomly assigned to a panel of three judges, rather than being considered by the entire court.
Second, motions for preliminary relief — which ask the court to order a party to do, or to refrain from doing, something while a case is being decided — are also assigned to a random panel of judges chosen separately from the panel that will ultimately decide the case.
Incorporating those circuit court practices to the Supreme Court would make the Court more efficient and less partisan, in reality as well as appearance. Specifically, Congress should pass legislation requiring the Court to operate more like the circuit courts in the following ways:
1. Expand the Supreme Court to fifteen Justices, and increase the number of Justices that must agree to consider a case to seven (one less than a majority, same as now);
2. Establish procedures for randomly selecting eleven Justices to hear and decide each case that the Court accepts for review; and
3. Establish procedures for randomly selecting five Justices to decide requests for preliminary relief and other “shadow docket” cases.
Those reforms would immediately resolve one of the gravest threats to the Court’s legitimacy: a consistent pattern of closely divided decisions breaking along partisan ideological lines in the most contentious and politically charged cases, with Republican-appointed Justices on one side and Democratic-appointed Justices on the other. Instead, decisions will become more balanced, as the ideological majority in each case will continuously fluctuate from eleven-Justice panel to panel.
In fact, the Court would likely decide less politically charged cases altogether, because neither litigants nor the Justices would be able to count votes before seeking, or accepting, Supreme Court review.
Justice Roulette Makes A Much Less Sure Bet
Imagine a lottery where your ticket has five numbers needed to win, with balls drawn from a bowl having only nine numbers. Now imagine that all nine balls will be drawn. Would you buy a ticket?
That is frighteningly similar to the way the Supreme Court often works, minus the rapid bankruptcy that an actual lottery would face under that system. Parties and lawyers know exactly which nine Justices will decide a case if accepted for review, and informed predictions of how each Justice will rule are increasingly reliable. Sophisticated litigants have therefore become increasingly adept at manufacturing cases designed to reach the Court once they are confident that at least five Justices will see things their way. Though the Justices do still sometimes surprise, those surprises are increasingly few and far between, especially in the most contentious and high-profile cases.
But if litigants seeking to establish or overturn precedent didn’t know which Justices would be drawn to consider their case, they would have to think twice before bringing cases that could just as easily set precedent harmful to their policy objectives. After all, buying a lottery ticket with six numbers needed from eleven balls drawn from fifteen seems a whole lot more risky — especially when there’s much more at stake than the cost of your ticket.
Randomly assigned Justices would not only temper litigants’ appetites to pursue policy-driven Supreme Court cases, but would also temper some Justices’ appetites to hear them. Indeed, the Court’s unique prerogative of choosing its own cases often leads to results-oriented case selection from the Justices themselves, who make similar judgments as litigants about whether their preferred legal outcome has the votes to carry the day. The Supreme Court thus exercises an increasing degree of “FORCE and WILL” not only through the decisions it renders, but by the cases it chooses to hear.
But if Justices were forced to choose whether to hear a case before knowing which of them would be drawn to decide it, each Justice would be similarly forced to consider the risk that their view may not prevail — even when that view holds a majority on the Court overall. The result would be more decisions in cases truly warranting Supreme Court resolution, with less cases chosen primarily as vehicles to obtain a broad reaching policy result.
Rushed Decisions Should Not Preclude Thoughtful Ones — Fixing The “Shadow Docket”
Litigants make similar calculations when deciding to seek preliminary or emergency relief from the Court, but with less downside risk. That is because a loss is usually temporary, but a win is often determinative.
The Supreme Court decides preliminary or emergency relief motions on a limited record and expedited time-frame as part of its “shadow docket,” often without written opinion or even disclosing how each Justice voted. The rushed process and lack of analysis explaining the Court’s reasoning make preliminary relief motions far more susceptible to legal or factual error, and to the appearance — right or wrong — of being arbitrary and result-oriented.
Assigning preliminary relief motions to randomly assigned five-Justice panels would not only change the lottery ticket equation for litigants, but would also protect against rapidly issued shadow docket decisions determining final case outcomes. Because preliminary relief generally requires a litigant to show a “substantial likelihood of success on the merits,” a subsequent final ruling against that litigant strongly implies that preliminary relief should not have been granted. Currently, the Court rarely issues a final merits decision against a litigant to whom the Court has granted preliminary relief — likely at least in part due to implicit bias against admitting error, however unintentional.
Having a separate panel of Justices decide emergency motions, like in the circuit courts, would reduce the risk of the Court predetermining case outcomes based on the same Justices’ earlier preliminary relief decision.
A More Productive And Efficient Supreme Court
Random assignment of cases to less than the entire Supreme Court would also allow the Court to increase the ever-shrinking number of cases it accepts for decision each year. That system is essential in circuit courts, where litigants are entitled to have their appeals heard as a matter of right. But because the Supreme Court determines its own caseload, it currently only decides as many cases as each individual Justice is willing and able to consider. By dispersing the Justices’ workload, the Court will gain the capacity to accept and resolve more cases worthy of its consideration — many of which are less controversial and likely to be decided by unanimous, or near-unanimous, majorities.
Although these reforms are unlikely to eliminate the partisan nature of Supreme Court appointments entirely, they should go a long way toward lowering the partisan temperature and restoring the Court’s legitimacy, both by reducing the relative importance of any one Supreme Court Justice, and by limiting the number of truly divisive Supreme Court decisions.
AN ADDITIONAL REFORM — AN END TO LIFETIME APPOINTMENTS
While the above reforms would significantly improve the Supreme Court’s institutional legitimacy and fairness, more is required to fully address the incentives for asymmetrical political warfare over appointment of Justices. Comprehensive reform will require addressing both the permanency of appointments, and the randomness of when the next vacancy might occur.
The randomness of vacancies in particular is responsible for the Senate’s ability to change and manipulate confirmation rules to control the Court’s composition — such as by refusing to consider one President’s nominee while claiming voters should have a say over who fills a seat in an election year, and then rushing through the next President’s nominee weeks before an election he would go on to lose. Such contradictory and intellectually dishonest tactics perhaps pose the greatest threat to the Supreme Court’s legitimacy as a neutral, apolitical branch of government having “neither FORCE nor WILL.”
There is considerable debate over whether the Constitution’s mandate that judges shall serve “during good behavior” precludes any form of judicial term limits, absent a constitutional amendment. Nevertheless, Congress would be well justified in providing the following additional reforms as a separate and severable provision of any Court reform package:
1. Each Justice shall be appointed to one 15-year, non-renewable, term tied to the seat rather than to the Justice — meaning that if a Justice should die or retire seven years into his or her term, a replacement shall be nominated and confirmed for the remaining eight years;
2. The terms of the current nine Justices shall expire one per year over the following nine years, in order of seniority;
3. The six new Justices shall hold initial terms of 10, 11, 12, 13, 14, and 15 years, respectively;
4. After the initial terms, one Supreme Court vacancy shall occur each year by operation of law.
Limiting each Justice to a single, non-renewable, term would also retain judicial independence by preventing the temptation to decide cases with an eye to re-appointment or re-confirmation. After fifteen years, each Justice would continue to hold the same privileges that retired Justices hold today, continuing to receive a salary and to hear cases by designation in the circuit courts. Retired Justices could also continue to serve on Supreme Court preliminary relief motion panels, further separating those decisions from the active Justices who will later decide the underlying cases on the merits.
Assuming those provisions can be reconciled with the Constitution’s “good behavior” provision, that system would mostly eliminate the randomness of Supreme Court composition, ensuring four vacancies per presidential term. Voters could then factor the appointment of four Justices into their calculus when voting for president, rather than weighing the importance of Court picks through the prism of guessing whether the next president will appoint one Justice, several, or no Justices at all. And, regular, predictable, vacancies would greatly reduce the incentive for partisan mischief in the Senate, since reciprocal treatment would be virtually assured in the relatively near future.
Any Supreme Court reform effort will inevitably be resisted by the political Party with most recent success at confirming that Party’s preferred Justices, and packing the Court to reverse those successes will only perpetuate the Court’s growing legitimacy crisis. But adopting the circuit court model, and enhancing it through staggered term limits if constitutionally permissible, can restore and sustain the Supreme Court’s legitimacy as an impartial arbiter of justice for generations to come.
