It won’t ever happen, but it is fascinating.
Two Yale Law School professors, writing in the July 29 Washington Post, advocate that Congress adopt a temporary restructuring of the Supreme Court for 2020, designed to mitigate the “[Merrick] Garland travesty” of 2016 and, further, to restore judicial perspective to the Court. [https://www.washingtonpost.com/opinions/democrats-need-a-plan-b-for-the-supreme-court-heres-one-option/2018/07/27/4c77fd4e-91a6-11e8-b769-e3fff17f0689_story.html?utm_term=.c8e435359b76]
FDR attempted court-packing to achieve political objectives, which would likely never be accepted today. But the professors’ prescription is interesting as a way to reduce rancor over Court nominees:
Expand the number of justices by two, to sit on the Supreme Court for a term of 18 years (after which they would complete their life terms in the lower courts and the Supreme Court would revert to nine justices).
Many in Congress, including some Republicans, continue to bristle at Senate Majority Leader Mitch McConnell’s tactics in denying Garland even the courtesy of a hearing in 2016, and are concerned about the outsourcing of identifying Court nominees to extreme partisan groups. This practice contributes to contentious confirmation hearings and detracts from public confidence in the Court.
The Constitution does not require nine justices. Originally, there were six, and this number expanded and contracted during the first half of the 19th century before nine became the norm.
This proposal would, according to its proponents, make it clear that this is not a mere addition of justices but is, rather, a considered approach to the 2016 Garland debacle. The proposal promises that if Democrats retake Congress this year and the presidency in 2020, they would commit to filling these two new seats with (1) a liberal counterpoint to Neil Gorsuch, and (2) Garland himself.
To quote the authors:
The balancing plan would be a temporary [18-year] intervention tailored to rectify the Senate’s prior dereliction in the Garland nomination. It would not radically expand the Supreme Court, but it would place Garland, for a limited time, in the likely swing vote position he would have occupied . . . in 2016.
According to the authors, by proposing this during the 2020 campaign, Democrats would give the American voter the chance to weigh in; Republicans could present their own ideas regarding the makeup of the Court. Other reforms could also be considered, such as limited terms for all new Supreme Court justices [18 years].
Outlandish? Perhaps. Unusual? Certainly. But an idea worthy of discussion. What do you think?
In our view, while it is highly unlikely that the professors’ proposal will see the light of day, any examination of alternatives to the current workings of the Court and its nominating and hearing processes would be welcome. The Supreme Court should not be a place of hardened us v. them positions.