Farewell to Anthony Kennedy, the one Justice who kept us guessing which way the Supreme Court would rule on a wide range of issues. With Kennedy gone and Trump honing his list of right-wing replacements, the Court’s decisions will very likely become more predictable – a prospect that makes progressive hearts sink. Nevertheless, there is no need to assume that the Court will have a conservative majority for the next generation, if not longer, and that there is nothing that can be done about it. This assumption is valid only if one considers the Supreme Court a sacred institution that can’t be altered even by perfectly legal means – for example, by increasing the number of Justices.
In fact, there is nothing either Constitutional or sacred about the number nine. The U.S. Constitution gives the President power to nominate Justices, and their number is determined by Congress, not by the Constitution. The Judiciary Act of 1789, which organized the Federal court system, originally created a six Justice Supreme Court – a number that was increased several times to reach the current total of nine. Clearly, it can be increased again if the Democrats and their allies possess the will to do so.
Of course, the idea of adding additional Justices to the Supreme Court is bound to seem offensive to many Americans on the left as well as the right. To criticize particular judges and their decisions is perfectly ok; everyone does that. But to question the way the Court is organized – to talk about changing the “magic” number 9 to some other number – is taboo. Defenders of the Court’s sanctity will immediately allege that such alterations threaten the “independence of the Judiciary.” As if! The fact of the matter, strange but true, is that the Supreme Court is generally considered to be beyond structural criticism.
This wasn’t always so. Once upon a time, when the Court’s main function seemed to be to protect property owners against challenges by poor people and workers, the Court was considered far from sacrosanct. Remember Dred Scott vs. Sandford, the infamous 1857 decision that protected slaveholders’ property rights in humans even in the free states? But in modern times, Brown vs. Board of Education and other decisions protecting civil rights and civil liberties of ordinary people won the hearts of liberals as well as libertarians. Today, neither leftists nor rightists look kindly on measures that would undermine a worshipful respect for the institution.
This is why it’s important to remember how Franklin Roosevelt, arguably America’s greatest president, dealt with the clash between political democracy and Court-worship. When FDR took office in 1933, the Great Depression was in full swing, and his mandate was to help the country recover from it. With massive Congressional support his first administration adopted a series of innovative measures to regulate the economy – laws that the Supreme Court invalidated on alleged Constitutional grounds. In 1936, Roosevelt was re-elected president by the largest electoral vote majority in American history. His hapless opponent, Alf Landon of Kansas, won only two under-populated states, giving rise to an old joke: “As Maine goes, so goes Vermont.” Despite this enormous vote of confidence in the New Deal and its politics, the Justices continued to nullify laws passed by the Democratic Congress.
In 1937, therefore, the Roosevelt administration introduced a bill giving the president the power to increase the number of Justices to a maximum of 15. Reflecting criticism of the “Nine Old Men” blocking the progressive agenda,
the Reform Bill of 1937 authorized the President to nominate one new Justice for each sitting judge with at least ten years’ service on the Court who had not retired after reaching the age of 70 1/2. The maximum number of new Justices that could be nominated was six. The same legislation also gave Roosevelt the power to nominate additional jurists to lower federal courts, up to a limit of 50. Famously, however, the legislation, which opponents called the “court-packing bill,” was bottled up in a Senate committee and failed to pass.
There were two reasons for this. First, conservative Democrats joined Republicans to oppose Roosevelt’s “tinkering” with a sacrosanct institution. Second, and probably more important, the Justices began to approve New Deal measures that they had previously been inclined to invalidate. Even before introduction of the Reform Bill, Justice Owen Roberts, the key swing vote, began to join the liberals in deciding important cases, a change of heart that some wags called “the switch in time that saved Nine.” Roosevelt thus lost the battle but won the war.
Now back to the present – and the future. Suppose that in the next two national elections, the Democrats take control of Congress and the Presidency. If they can free themselves from excessive reverence for the Court – a big “if” – it will be a relatively simple matter to increase the number of Supreme Court Justices to a number sufficient to insure implementation of a progressive legal agenda. And, if Trump has effectively conservatized the Federal court system as well, Congress can authorize an increase the number of Federal judges, too.
One key difference between a new court reform bill and FDR’s proposal should be noted. Today’s progressives should notuse the advanced age of sitting Justices as a reason for adding to their number. This ageist viewpoint, neither fair nor reasonable, did not help Roosevelt make his case for structural reform of the Court. Nor is it necessary to argue, as he did, that existing Federal judges are overworked (although many of them are). The plain justification for the legislation is this: Federal courts are political as well as legal institutions that should not be insulated from major changes in American political thinking. It is both undemocratic and unreasonable to permit jurists appointed for life to sit in judgment on the political decisions made by later generations.
Let’s be very clear about this. We do not want to create a situation in which each new swing of the political pendulum creates a higher number of Supreme Court Justices. But this can easily be avoided if one focuses on the underlying structural problem, which is the lifetime appointment of Federal judges. The appointment of judges for life (“good behavior”) is a doctrine as outdated and undemocratic as the old custom of having state legislatures elect U.S. Senators. This practice ismandated by the Constitution, but it can be changed by a Constitutional amendment. An amendment to provide reasonable term limits for Federal judges ought to receive substantial support from both progressives and conservatives who believe in term limits generally.
In fact, the practice of making lifetime appointments is a holdover from the days antedating the rise of political parties, when law was thought to consist of objective principles “discoverable” by judges, and judges were considered a priest-like elite commissioned to make decisions uninfluenced by political bias. These ideas might have made some sense in periods when levels of political participation were low, disagreements negotiable, and rates of political change moderate. But at times like the present, involving high participation, intense disagreements, and high rates of change, appointing judges for life seems obviously anti-democratic as well as a poor method of trying to resolve serious social conflicts. It virtually guarantees a perpetual conflict between the judiciary and the other branches of government.
In a democracy, it seems clear, no one should ever be appointed for life to any public position (except for honorific positions such as British royalty). There should therefore be appropriate term limits for Federal judges, as well as for other political officials. But, because it will take some time to agree on terms and to amend the U.S. Constitution, a medium-term strategy is called for.
That strategy is two-fold. First, “pack” the Court by permitting the President to nominate new members up to an agreed-upon maximum number. Eleven should do the trick. Second, initiate a process to pass an amendment to the Constitution limiting judicial terms of office.
Campaigning for such measures will mean helping to convince Americans, if they are not already convinced, that the law and the courts arepolitical, and that that’s ok, so long as their views are the product of an ongoing collective conversation. Courts should not be trapped in a time warp that echoes obsolete messages and instantiates the values of vanished generations. The solution to this problem, pending longer-term fixes, is to reorganize the courts to the extent necessary to bring judicial values in line with the political values cherished by most Americans.