Put simply by former Vice President and Democractic Presidential candidate Joe Biden, the Supreme Court is “out of whack.” If elected, Biden says he will convene a bipartisan commission of legal scholars to study possible ways to reform the federal judiciary and make recommendations within 180 days.
If Democrats take both the White House and Senate come election day, they have a number of options to consider, each with its own set of legal and political hurdles that must be cleared.
Here are four of the proposals gaining the most traction:
Google searches for the phrase “court packing” skyrocketed to their highest frequencies in five years just days after the death of Justice Ruth Bader Ginsburg. Court packing entails adding more judges to a court than there currently are in order to restore ideological balance to the bench. Progressive democrats have discussed the possibility of adding either two or four liberal justices to the court as the confirmation of Amy Coney Barrett this week will solidify a 6-3 conservative majority for years to come.
The process of packing the court is relatively easy, only requiring the passage of legislation by Congress and approval by the President. The Constitution says nothing about how many justices must be on the Supreme Court, just that a Supreme Court should exist. The size of the court has also fluctuated over time as several different presidential administrations expanded and shrank the court between 1789 and 1869 for a variety of reasons.
While this option seems straightforward legally, it has complicated political implications. Biden himself opposes court packing as he says that “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” For example, President Franklin D. Roosevelt proposed a bill to expand the Supreme Court in 1937. However, the bill ultimately failed and he drew extensive criticism for proposing the bill with the clear intention of ideologically shaping the court to protect his New Deal legislation.
The Balanced Bench
Former Mayor of South Bend, Pete Buttigieg, proposed the Balanced Bench option while running in the Democratic primaries. This option comes from an influential paper written by Yale Law professors Daniel Epps and Ganesh Sitaraman. The Balanced Bench proposal would first establish a 10 member supreme court, with each party nominating five justices. The 10 justice supreme court would then select five judges from the federal appellate courts to sit with them and hear cases for a year.
The five justices selected by the court are intended to be moderate, centrist judges to maintain the bipartisan representation. However, critics of the proposal argue that the notion of a moderate and centrist judge is inherently subjective and can result in an ideologically skewed court anyway.
In their paper, Epps and Sitaraman argue that the Balanced Bench option can be enacted via congressional legislation. However, other legal scholars have questioned this simplicity, arguing that a constitutional amendment may be required to implement this plan.
Representative Ro Khanna proposed legislation in September to implement 18-year term limits for Supreme Court justices. After their time on the Supreme Court, judges would fill out the rest of their lifetime appointments on lower federal courts. Term limits would theoretically lower the stakes of confirmation battles as each president would be guaranteed two opportunities to appoint a justice. Legal scholars and elected officials across the political spectrum have supported term limits, including the current Chief Justice himself.
The writers of the constitution made it clear in the second sentence of Article III, Section 1 that they intended for Supreme Court justices to have lifetime tenure to remain independent. For this reason, the legality of legislation imposing term limits is unclear. Some legal scholars believe that allowing for justices to fill their lifetime tenure on lower courts after serving on the Supreme Court could be completely constitutional, allowing for term limits of this nature to be imposed via congressional legislation. Others believe that a constitutional amendment would need to be passed in order to impose term limits, further complicating the process of implementation.
Jurisdiction Stripping involves congress enacting legislation to strip the federal judiciary of jurisdiction to hear certain types of politically charged cases. For example, Congress could enact laws like the Green New Deal with provisions stipulating that the legislation lies outside the bounds of Supreme Court review.
The constitutionality of such provisions is complicated. Proponents of judicial review argue that the Exceptions Clause of Article III Section 2 gives Congress the power to make “exceptions” and “regulations” to the Supreme Court’s jurisdiction. This was confirmed by the Supreme Court’s decision on Ex parte McCardle in 1869. However, many legal scholars argue that Jurisdiction Stripping is a violation of the doctrine of separation of powers because it interferes with the courts’ power to decide cases independently.
While likely an effective means of reining in the power of the Supreme Court, the viability of Jurisdiction Stripping as a means of judicial reform is both legally and politically unclear. When advising the Regan Justice Department, now-Chief Justice Roberts defended the use of Jurisdiction stripping to achieve political goals. Alternatively, the practice could create a “race to the bottom” under which each party would be able to protect more and more legislation from judicial review and further restrict the court whenever they control congress.
Whether Biden wins or loses, calls to reform the Supreme Court are unlikely to go away. They have only been growing louder since Republicans refused to consider Merrick Garland, Obama’s nominee to replace Antonin Scalia in 2016. Regardless of which option is ultimately championed by either a Biden administration or the reform movement in general, there are inevitable legal hurdles to overcome in order to fundamentally change the way in which the Supreme Court has operated for over 150 years and get it back “in whack.”
Emma Smith is a Sophomore from Fort Lauderdale, Florida studying Public Policy and Psychology.
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