By Andrew Scalise
One might expect that the entire country grieved on the evening of September 18 with news of the passing of Supreme Court Justice Ruth Bader Ginsburg, but perhaps the only thing sadder than learning of her death was the number of conservatives celebrating and anticipating the opportunity of rapidly filling her seat on the Court. After seeing the extreme political measures Republicans employed to establish a 6-3 conservative bench majority, it is clear the political process has major flaws in establishing an impartial judiciary. These flaws undermine the legitimacy of our court system, public trust in its rulings, and embolden others in power to flout its directives.
So how can we fix our system and our Court?
Single Fixed Terms for Justices
“Till death do us part” works in some marriages but has no place in the federal court system. Lifetime appointments may have been reasonable in a time of shorter lifespans and when we still believed court seats could remain apolitical, but we are surely in a different time now. Both parties strive to appoint the youngest, most extreme candidates in the hopes of dominating the ideology of the Court for generations. A single fixed term for Court appointees would reduce the political appetite of partisanship, ensure that justices don’t serve beyond their years, and devalue the importance of an individual seat. Under Article III of the Constitution, members of the federal judiciary serve for “good behavior” which, functionally, has meant for life. Thus, limiting tenure to a fixed term would require a Constitutional amendment designed not to affect the present sitting judiciary. This reform could appeal to Congress as bipartisan.
Increase the Number of Justices
The Judiciary Act of 1869 established the number of Supreme Court justices at nine, one for each federal circuit court. More than 150 years later, the population of the nation has increased from 38.5 million to 325 million, or 8.5 times greater. Cases and controversies, the jurisdiction of the federal courts, has also exploded, far beyond the imagination of the Founders.
The circuit court system originally consisted of one Supreme Court justice “riding circuit”, each serving on their assigned federal circuit court. Currently, Supreme Court justices continue to serve on assigned U.S. Courts of Appeals, but as there are currently 13 Courts of Appeals, several are assigned to multiple courts. This proportion argues for membership on SCOTUS to be 13. Accordingly, an amended Judiciary Act that formally pegs the number of justices to one per Court of Appeals, as originally intended, makes sense, while maintaining a founding tradition. Four new SCOTUS appointments subject to fixed terms offer Republicans and Democrats a great deal of negotiating room without compromising the current court’s ideological jurisprudence.
An easy way to devalue individual seats on the Court is to inflate the Court, population growth, and litigation expansion; matching Supreme Court justices to the number of districts provides the rationale to do so. A tripling of the Supreme Court’s membership to 27 may be an even more efficient and effective measure, maximizing oversight of the district courts. It would also further mitigate concerns about the Court’s political balance. Operating similarly to appellate courts, only a subset of justices need preside over a single case, with the potential for all justices to hear an en banc appeal based on a vote of all justices on the Court. A simple proposal would be for each case to comprise nine justices assigned at random, tripling the Court’s capacity, eliminating the ability of lawyers and political groups to target specific cases for the Court’s jurisdictional attention, and maintaining the current structure of the Court’s cases and rulings. Here again, the additional 18 new seats could attract bipartisan support. Such agreement might be furthered by staging six appointments per year over a period of time to diminish partisan claims.
The Framers did not intend for the judiciary, particularly the Supreme Court, to be aggressively partisan…. Regardless of political affiliation, the national electorate is entitled to a judiciary that does not suffer from the virulent and destructive scenarios that have marked the Court’s most recent additions, and Congress needs to use its legislative authority to bring the three branches back into balance.
Concerns also exist over the Courts of Appeals with an imbalance in caseload among the circuits and issues with overreach from the Supreme Court (overturning approximately 69% of the circuit court rulings). Congress could establish two new circuit courts and redefine the circuits’ jurisdictions to balance the workload more equitably. Merely increasing the High Court would afford one Justice per existing circuit. A more intimate relationship between SCOTUS and the circuits could result in a reduced reversal rate, enhancing judicial amity at the highest level of the federal system. Six new appointments offer broad opportunity for bipartisan compromise.
Reduce the Court’s Jurisdiction
The majority of Supreme Court cases arise through appellate jurisdiction, as cases originate in lower courts and four members decide whether the Supreme Court should weigh in. This jurisdiction is not directly enumerated in the Constitution and, accordingly, Congress can alter the appellate jurisdiction of the Court. If Democrats in Congress had the political will, they could create a new federal appellate court expressly to hear final appeals of lower court rulings and strip the Supreme Court of the ability to review most of its rulings.
The Framers did not intend for the judiciary, particularly the Supreme Court, to be aggressively partisan, but they also did not provide the Court the authority to be the final arbiter on all matters affecting the people (that capacity arose from Marbury v. Madison, 1803). The Court assumed that role for itself, and Congress acquiesced. For the most part, political issues have made SCOTUS so valuable and powerful, drawing enormous consumption of money and effort into determining the identity of individual justices.
Regardless of political affiliation, the national electorate is entitled to a judiciary that does not suffer from the virulent and destructive scenarios that have marked the Court’s most recent additions, and Congress needs to use its legislative authority to bring the three branches back into balance.