How to Depoliticize the U.S. Supreme Court

Without question, base politics has at times dogged the Supreme Court. What is probably the most egregious instance occurred during the Court’s early years in – what may come as a surprise – one of the most highly regarded cases it ever decided: Marbury v. Madison. That 1803 decision famously affirmed the Court’s power of judicial review to invalidate laws that violate the U.S. Constitution’s provisions.

The Marbury decision was straightforward enough: the Court struck down a 1789 law in which Congress had added to the Court’s original jurisdiction (being certain types of cases that only the Court can hear and decide). But in a display of high-minded reason, the Court held that the Constitution had fixed and limited that jurisdiction and therefore Congress could not add to it.

Nevertheless, the political reality of the case was that President Jefferson was angry over the “lame duck” actions of President Adams just before Jefferson took office, including, among other things, the appointment of various justices of the peace, such as William Marbury. Jefferson refused to recognize Marbury’s appointment. Marbury then sued in the Supreme Court, relying on the Court’s expanded jurisdiction under the 1789 statute, and lost when the Court ruled it did not have such original jurisdiction to hear his case.

That outcome surely pleased President Jefferson (even if the Court’s anointing itself with the power of judicial review did not). Still, the decision in Marbury was an act of self-preservation, since otherwise the Jeffersonians in Congress would certainly have tried to impeach and remove the justices. Indeed, one justice, Samuel Chase, was soon impeached for related reasons, but would be acquitted and remain on the Court.

The foregoing underscores a historic frailty of democracy: that high-minded stewardship is prone to give way to small-minded partisanship. The Founding Fathers were of course aware of this danger, and sought to create a federal government that could resist it. In forming a republic, they hoped that the scheme of separation of powers in the Constitution – qualifying the executive, legislative, and judicial branches – would help blunt the tendency of base politics to skew the common good.

Over 230 years later, in the course of forty-five presidencies, that hope has met with mixed success, and right now may well strike many Americans as merely wishful. All the same, and despite the glaring example of the Marbury case, the judicial branch relative to the other branches has managed to remain fairly unscathed by political partisanship. That seems remarkable given that to become a federal judge or Supreme Court justice one has to be nominated by the president and then affirmed by the U.S. Senate, each qualification affording a tempting opportunity to try to reshape or at the least influence the ideological make-up of the federal benches and in particular the Supreme Court.

But, remarkably enough, when such opportunities have been taken advantage of, they have tended to fall short, including in the Supreme Court, with a given new justice sooner or later defying political calculations. One reason is that over much of America’s history political and judicial ideologies developed independently and so have not often matched up neatly. Another reason, in tribute to the Founding Fathers’ vision, is that the judiciary has been seen and treated as different from the politically-infused nature of the other two branches, thus engendering some political restraint. As well, the risk of a Senate filibuster has for long helped “inspire” a measure of bipartisanship (until it was done away with in the last few years regarding federal judgeships). Finally, there is no overestimating, even in these cynical times, Americans’ long-standing faith in the rule of law and their deep respect for the Supreme Court’s role in interpreting the Constitution, but a respect always conditioned on the justices doing so with intellect and integrity.

But whatever the reasons, the fact is – in what may come as another surprise – that it has never really been the case that the justices of the Supreme Court composed politically-based blocs where all of the so-called conservative justices were appointed by conservative party presidents and all of the so-called liberal justices were appointed by liberal party presidents and each bloc often opposed the other in their respective beliefs and decisions.

That is, that has never really been the case until now.

Since 2010, with the confirmation of Justice Kagan (replacing Justice Stevens), the current justices appointed by Republican presidents have tended to be conservative in outlook and the current justices appointed by Democratic presidents have tended to be liberal in outlook. And with the resignation of Justice Kennedy, who was the Court’s so-called swing justice, and the appointment of Judge Kavanaugh, a conservative jurist, to replace him, the Court now comprises two ideologically-based-and-opposing blocs. It appears that small-minded partisanship has finally gained a firm foothold on the make-up and decision-making of the Court.

The likely consequence for many election cycles to come will be a relentless tug-of-war over which bloc of justices will hold the majority power. Already, some recent commentaries are promoting the long discredited idea of court-packing as an acceptable strategy for the future.1 In all events, it is now doubtful that a would-be moderate or swing justice could ever be confirmed, let alone nominated, again.

All of that is just unacceptable for an institution that has aspired to serve as an expounder and trusted guardian of our country’s most fundamental law. As long as base politics exercises such an outsized influence on the make-up of the Court and its future decisions, the authority of the Constitution will be degraded and respect for the rule of law eroded. And so the only way to preserve the Court’s intellectual integrity in these respects is to find a new way – more reliable than political restraint and less tumultuous than political turnover – to isolate and neutralize that partisanship.

One often touted “solution” is either a statute or constitutional amendment that imposes term limits on the justices. Specifically, eighteen-year terms that are staggered such that every President would appoint two new justices to the Court during his four-year term (and thus two more if he were to be re-elected). The basic idea is that the political drama of Court nominations would be diminished and the longevity of a right-leaning or left-leaning Court would be shortened.

This idea certainly has some merit. It would go some way to render nominations less of a cause célèbre, reducing their political do-or-die angst. Unfortunately, though, it would still treat the Court as just another partisan-infused institution, and that is just not what the Founding Fathers had in mind.

Even though it is the reality of our times, I do not think we should so easily give up on the idealism of the Founders in their times. And so I propose the following idea for how the Supreme Court should be “reconstituted”. It consists of three legal changes (none of which is novel).

1. Increase the number of Supreme Court justices to fifteen.[2] I propose this number for practical reasons made clear below, not for court-packing purposes per se. But at this point I am happy to defend it on principle.

First, when a federal Court of Appeals is faced with a very significant case, it can order an en banc bench, consisting of at least fifteen judges, to decide it. So if fifteen (or even more) judges are appropriate to decide such significant cases, then the cases chosen by the Supreme Court for review – thus becoming the most important cases of all in our legal system – should merit the consideration of at least that same number of judges.

Second, there is the issue of the Supreme Court’s current workload. At the end of the 2017-18 term, the Court had decided only sixty-three cases. But back in the 1980s, its annual workload topped 150 cases. The reasons for the more than fifty percent drop are beside the point: the Court should be accepting and deciding more cases than it is. A crucial goal of a legal system is to settle nagging questions of law, thereby making law clearer and society more efficient. Increasing the number of justices in order to increase the number of cases they accept for review will better serve those ends and is therefore justified.

2. Permanently designate five of the Court’s total seats “liberal”, another five “conservative”, and the last five “moderate”.3 Yes, accordingly, the Court’s presently two partisan blocs will become counter-balanced by each other, such that when in a given case they are so strictly opposed, the “swing” or moderate faction will determine the outcome. But such a scheme will require that the terms “liberal”, “conservative”, and “moderate” are made more precise.

Constitutional interpretation has always been about more than the partisan views and related policies advocated by so-called liberals, conservatives, and moderates. It is more deeply and critically concerned with legal theory and social philosophy. And one such fundamental aspect, by way of example, is how the words, phrases, and discrete provisions of the Constitution can and should be best interpreted.

On the one hand, there is the view that the Constitution should be strictly (and so conservatively) bound by its “original meaning” when its provisions were created and adopted. On the other hand, there is the view that the Constitution should be seen as a “living document” that must freely (and so liberally) reach out from its past to address the unforeseeable circumstances of the present and future. And deeper within each view there can be caveats and finer distinctions to grapple with. Still, those two main views make for a principled and noble debate that can, and often will, result in deadlock. Which, if it is to be resolved, necessitates a moderating view, to wit: that constitutional interpretation can only ever be a difficult and nuanced undertaking, which may hope to but can never really be sure will result in the right answers or the best legal outcomes.

All that said, the defining characteristics of the judicial frames of mind that have come to be called “liberal”, “conservative”, and “moderate” have shifted over time and will doubtless continue to do so. There must, then, be a means to assess and keep track of that evolution over time so as to identify a proper nominee for a given designated seat on the Court and thus effect and sustain the Court’s ideological balance.

3. Create a “Supreme Court Commission” whose membership shall identify and classify potential Supreme Court candidates, and whenever a vacancy arises on the Court shall provide the President of the United States with a list of such candidates for the kind of designated seat to be filled, from which list the President shall select a nominee.4 Who should constitute the membership? I think there is only one group of people capable of fulfilling the Commission’s purposes: members of the Academy. Specifically legal, and preferably constitutional, scholars. Who should appoint them? The Supreme Court itself, bearing in mind that the Commission should, like the Court, represent a certain diversity of knowledge and philosophy. How many members should it have? At least 15. Can the Commission choose any of its current members as possible justices? No. What other administrative rules should the Commission follow? Let it determine those.

I believe such changes would go far to depoliticize the Court and safeguard its intellectual integrity. But how could they be accomplished? Can they be done by statute so as to be constitutional, or only by changing the Constitution by a new amendment?

I have no doubt that many constitutional experts would be quick to say that only a constitutional amendment would work in this case. In particular, they would point out that my proposal basically qualifies and limits the President’s power under Article II, Section 2 (2) of the Constitution, which states that the President “… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law …” (Emphasis added.)

This so-called appointment power has generally been understood to mean that a President is free to nominate anyone that he and he alone decides is right for the given office (subject only to the Senate’s subsequent approval). Restricting the pool of judicial candidates for a given vacant seat on the Supreme Court to a set judicial ideology would arguably limit the President’s discretion. As well, restricting the President’s choice to a list of nominees prepared by a separate federal agency would arguably further limit that discretion. The overall point is well-taken.5

However, what the history of American constitutional law demonstrates is that constitutional interpretation is often an uncertain undertaking, and that not many of the Constitution’s many important clauses and terms can or should ever be taken for granted. Indeed, the so-called appointment power can be presented as a good case in point if we care to compare and contrast the current circumstances of the Supreme Court with what the Founders made clear was their “original intent” in these regards. But first, to be thorough, I should start by noting some of the other relevant powers of Congress.

The Constitution both expressly and impliedly grants Congress broad power to structure the entire federal government, including the federal courts. Article III of the Constitution, which concerns the judicial branch, creates the Supreme Court, but allows Congress to “ordain and establish” such “inferior courts” as it wishes. Article III further defines the Supreme Court’s original and appellate jurisdiction, but specifies Congress may qualify the latter. Apart from granting all federal judges lifetime tenure, Article III has nothing to say about any aspects of the Supreme Court’s make-up nor about Congress having any power to determine them.

Section 8 (9) of Article I, which concerns the legislative branch and its powers, authorizes Congress to “constitute Tribunals inferior to the supreme Court” (which are courts created under the jurisdiction of Congress, and therefore different in kind from the “inferior courts” that make up the judicial branch of Article III). But the most important power Congress has comes in Article I, Section 8 (18), a “catch-all” provision whereby Congress is “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States [from the executive to the legislative to the judicial branches], or in any Department or Officer thereof”. On this last clause hangs many a Congressional act essentially rounding out the federal government as we know it today.

The most comprehensive record of the Founding Fathers’ concerns and designs for the federal government are contained in The Federalist papers, being those eighty-five newspaper letters, essentially essays, written by John Jay (five), James Madison (twenty-six), and Alexander Hamilton (fifty-one) – with three more a joint effort by the latter two men – during the time leading up to the Constitution’s ratification. In The Federalist LXXVI, Hamilton gives an overview of the proposed appointment power of the President. He refers to it as “[t]he sole and undivided responsibility of one man”. He asserts: “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union.” He then explains that such a power vested in that “one man” the President:

… will naturally beget a livelier sense of duty and a more exact regard for reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.

More importantly, Hamilton identifies the various problems that are supposed to be avoided by the appointment power as designed. He argues that “the intrinsic merit of the candidate” would be the focus of consideration rather than “the private and party likings and dislikes, partialities and antipathies, attachments and animosities” that would otherwise determine an appointment were the power to nominate vested in a number of officials. The “advice and consent” of the Senate is similarly ameliorative: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

Just how well do the circumstances of the recent nominations to the Supreme Court measure up to the high expectations the Founding Fathers placed on the President’s appointment power? In a few words: not good, very bad. Our current President is focused on partisanship, preoccupied with private loyalties, and firmly believes that the extrinsic fact of his popularity is far more vital than whatever intrinsic merit his nominees have. Equally unsettling, his nominees have been chosen based on their being on a set list of recommended candidates that was largely influenced, if not in large part composed, by one or another member of the Federalist Society, a libertarian/conservative organization that greatly desires to see judges of the same persuasion preside over as many federal courts as possible. In sum, the appointment power as originally envisioned has been undone by the very same partisan obsessions and self-serving motivations the Founding Fathers sought to avoid if the federal government were to have, as Hamilton described it, the “aptitude and tendency to produce a good administration”.

How hypocritical – how insane in fact – that the original intent behind the words of the Constitution should be subverted by conservative activists who otherwise believe and insist that the Constitution should be interpreted and applied in accordance with its original intent.

Still, what better political and legal basis for trying to bring about my suggested changes to the Supreme Court by way of a statute and defending its constitutionality. For I contend the effect of those changes would be to achieve that “good administration” for the Court that the Founding Fathers intended and that the Constitution thereby “dictates”. But as a statute, would it pass constitutional review? In theory, no, but in the current political climate, who knows? Certainly there is little downside to trying. And the effort would be worth seeing whether the Justices dared accept it for review (on the assumption the lower courts would strike it down). Regardless, it could serve as a reckoning for those conservatives and liberals bent on waging endless partisan warfare. In sum, passing such a statute is worth a try (with a constitutional amendment held in reserve).

The constitutional basis for enacting the statute would naturally be the necessary-and-proper clause. It exists to draw out sufficient reasons to justify Congressional acts that further shape one or another of the three branches of the federal government. The essential question it would pose in this case is: Are the statute’s qualifications on the ideological make-up of the Supreme Court and on the President’s power to nominate its justices necessary and proper to preserve the independent authority and critical integrity of the judicial branch in accordance with the Constitution’s scope and its scheme of separation of powers?

By itself, on its own terms, the question demands a yes, because the Constitution envisions, and by extension the country as a whole must needs have, a truly high-minded Supreme Court.

1 Later on in this essay I take up the nature of the President’s constitutional power to nominate justices to the Supreme Court. Although I do not endorse the strategy of court-packing, I am yet driven to wonder here if the nature of that express power to nominate calls into question Congress’ historical exercise of what is its bald assumption of and not-at-all a clearly implied constitutional power to dictate the number of seats on the Court (presumably otherwise justified under the so-called necessary and proper clause of Article I, Section 8 (18) of the Constitution). In other words, the argument could be made that the express power of the President to nominate justices, generally thought to be virtually absolute and unfettered, naturally also entails the power to establish the number of sitting justices, and increase that number at will (provided the Senate concurs by confirming his additional nominees).

[2] The number of Supreme Court justices has changed several times. In 1789, the Court began with six justices, which was reduced to five in 1801, increased again to six in 1802, to seven in 1807, to nine in 1837, and then to ten in 1863. But in 1866 it was reset to seven (to be reached by attrition), and then in 1869 raised to nine again, which has remained the set number up to the present.

3 Similar designations for federal offices or positions are to be found in both the executive and legislative branches. Commissioners who sit on the Federal Communications, Federal Trade, and Federal Election Commissions have to be nominated by the President and confirmed by the Senate. But the number of seats in each agency – FCC (five), FTC (five), and FEC (six) – are restricted in their ideological make-up. For each agency, no more than three seats may be occupied at any given time by members of the same political party. Also, in Congress, similar administrative rules define the political make-up of its numerous and various committees.

4 Many states have created judicial nominating commissions that generate lists of acceptable candidates from which governors then choose nominees for their state courts.

5 All the same, I refer back to my first endnote to point out an equally interesting flip side: If the President’s power to nominate arguably encompasses the power to set and increase the number of seats on the Supreme Court, then Congress’ having all these many decades successfully assumed and exercised that latter power entails that the President’s power to nominate has already been fettered under the Constitution, and thus can be further fettered if there are constitutionally sufficient reasons to do so.