The second point ... about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions. We are in that crisis now, but just at the start of it.—Yours truly (from "Anthony Kennedy and Our Delayed Constitutional Crisis")
In the same way that countries like Libya are "failed states," the U.S. Supreme Court is a failed institution. Always partisan, either mainly or partly, its authority—meaning the people's acceptance of the validity of its rulings—rests on a kind of momentum, a belief that despite its long history of missteps (Dred Scott and Plessy v. Ferguson, to name just two) the Court can be trusted, in time, to self-correct.
That the Supreme Court was failing its constitutional role had been clear to close observers since the 1976 decision in Buckley v. Valeo, which ruled that election spending was "speech." Yet despite the numerous bad decisions that followed, the momentum of belief—and the illusion that Anthony Kennedy represented a "swing vote" on an otherwise ideologically balanced bench—has kept most Americans, if not blind, then unnoticing of the modern Court's deadly defects.
The first real crack in the dam of faith occurred with the Bush v. Gore decision, in which a nakedly partisan majority installed a losing presidential candidate in the Oval Office simply because it could, using only its authority, and not the law, as justification. Later decisions like Citizens United put proof to many people's suspicions that the Court was an operative in a war for political control and no longer a place where law, even bad law, had a place.
The recent, manipulated addition of the clearly unfit Brett Kavanaugh, a partisan right-wing warrior, to the bench confirmed those suspicions in spades. He even appeared to threaten revenge when he reached the Court for the way he and his confirmation were treated.
What will happen when, not just some, but most Americans consider the Supreme Court illegitimate, when the Court reveals itself to be fully what it is—a captured body serving a powerful, very small political minority (the very rich, the pathologically "moral") to the exclusion of the whole of the rest of the country and its needs?
We're poised on the cusp of that revelation, of the Court's self-outing in full view of the public. With cases like Roe v. Wade, to name just one, coming before it and a bench with no supposed "swing vote," the country is about to witness from the John Roberts judiciary what it has already witnessed from the Mitch McConnell Senate—what it has the power to do, it will do, simply because it can, however destructive the results to norms, precedent or established behavior.
We're about to witness Bush v. Gore on steroids—not a semi-forgivable, if monumentally wrong one-off, but a series of decisions that define a willful judicial oppression that will last through the next generation.
What can be done to prevent this oppression and the revolt that will surely follow? Is there a solution?
Expanding the Court: Four Proposals
Expanding the Supreme Court has often been offered as an answer, but the last attempted expansion—FDR's so-called court-packing scheme—still leaves a bad taste in the mouths of most Democratic politicians (even though it worked; see "The switch in time that saved nine").
Yet the composition of the Supreme Court has changed many times throughout our history, and the number of judges was deliberately and explicitly left to Congress, an obvious example of a constitutional check against the over-exercise of judicial power. Clearly, congressional action can address the problem.
But what should Congress do? Is "court packing" the only alternative?
In an excellent article published in the Harvard Law and Policy Review, Kurt Walters offers not just one, but four ways that Congress could restructure the Court. Each deserves attention and consideration:
The first and most straightforward approach to expanding the Court is adding two, four, or six new justices to the Court. This suggestion has been advanced by Professor Michael Klarman of Harvard Law School, among others. This expansion would serve to offset the tarnished confirmations of the most recent two Supreme Court nominees, although critics of this approach, including Senator Bernie Sanders, warn it could unleash a spiral of retaliatory moves by whichever party is in power.
The second option is to reconstitute the Supreme Court in the image of a federal court of appeals. This course of action would increase the number of justices to fifteen or a similar number. Panels of justices would be drawn from this larger group, with an option of en banc review. This plan would not only dislodge the Court's current reactionary majority, but the panel format also would allow a greater number of cases to be heard.
Third is the Supreme Court Lottery, a more aggressive version of the panel strategy. Daniel Epps and Ganesh Sitaraman have outlined this proposal in a forthcoming Yale Law Journal piece. All federal appellate court judges, roughly 180 in total, would become associate justices on the Supreme Court. Panels of nine justices would be randomly selected from this pool. Importantly, decisions on whether to grant certiorari on a given case would be made by panel members who would not know the ideological makeup of the panel that would hear the case. Thus, this plan would frustrate partisan maneuvering.
Fourth and finally is Epps and Sitaraman's idea for a "Balanced Bench." This proposal aims to counteract the effects of partisanship on the Court by explicitly recognizing and institutionalizing partisanship presence. The Court would have ten justices, with five seats allocated to each of the two major parties. Those ten justices would select sets of five additional justices at a time to serve a future, non-renewable one-year term. That selection would operate on a requirement of near-unanimity to ensure that this final set of five justices would be relatively even-handed. However, it is not certain how a Democratic president would fill a vacancy in a Republican seat that arose during her tenure, or how a Republican president would fill an analogous Democratic vacancy.
I'm partial to the second and third alternatives myself, with the added benefit that under the third proposal,"decisions on whether to grant certiorari on a given case would be made by panel members who would not know the ideological makeup of the panel that would hear the case." Implementing a proposal like that would certainly tip the scales of justice toward justice and away from partisan manipulation.
Will a future Democratic Congress be bold enough to offer any of these proposals? If the timid behavior of the present Democratic House is any indication, likely not—unless Congress is led to it, perhaps, by a bold and aggressive future Democratic president, someone truly on the people's side, for a change. Yet another reason to support the boldest progressive in the race, whoever he or she might be.