The Supreme Court Should Be Less of a Ghoulish Parlor Game In Which We Try To Guess When People Will Die
A proposal for court reform
I’ve spent the past year thinking: “There is no possible way that Stephen Breyer is too dumb to not know that he has to retire before the 2022 midterms.” And, indeed, he is not too dumb; all credit to Justice Breyer. If nothing else, he’s saved me from the prospect of having to spend another Republican presidency keeping tabs on the health of an octogenarian liberal Justice. That’s huge — I was dreading a repeat of this absolute fucking nonsense:
How the fuck did liberals convince ourselves that you can beat cancer by doing dumbbell curls? You cannot. The fact that we spent three and a half years imagining that it’s possible to GirlBoss cancer into remission is one of the more pathetic cases of mass delusion in recent memory.
Every recent Justice other than Ginsburg and Scalia understood that you need to retire when “your party” (another delusion that I choose not to indulge is that Justices don’t have parties) controls the White House, and preferably also the Senate. We live in an era of strategically timed retirements, which is also an era in which Senate norms have been shattered and the Grim Reaper leans conservative. Those factors are the main reasons why this chart looks the way it does:
Have you ever wondered what will happen the next time a seat comes open while the White House and Senate are controlled by different parties? Will the seat just sit open until after the next election? It might — McConnell’s refusal to hold hearings for Merrick Garland was such a violation of norms that if the shoe’s ever on the other foot, even process-and-order sluts like myself will want to dish out some payback. Though, consider: If the subsequent election doesn’t align the Senate and the White House, will the seat just sit vacant for another four years? Don’t rule it out! Either party’s base will demand exactly that.
We have a problem. There is no “regular” process for confirming Supreme Court Justices anymore. Republicans have managed to engineer a 2/3 majority on the Court despite commanding nothing close to that in terms of popular support. Justices are timing their retirements and are even attempting to time their deaths; we will surely eventually have a Justice stay past the point of senility because they’re trying to hang on until their party regains control of the White House. The public has noticed the naked partisanship. Appointments are getting ever younger; we’re perhaps a decade away from some pimple-faced appointment being sold to the public as “the Doogie Howser of Judges!”
We need to reform our process, but “reform” is a word like “organic” or “love” that can mean a million different things. So, I’m going to spend most of this article clarifying my goals, which will ultimately lead me to a very simple and completely unoriginal proposal.
The discussion in this area is riddled with short-term thinking. Liberals feel that conservatives engineered a supermajority through loopholes and underhanded bullshit. Conservatives are quite pleased with the supermajority that they engineered through loopholes and underhanded bullshit and don’t want to give it up. I’m trying to get beyond that — I’m trying to identify what’s wrong with the process and then land on a solution that will last. With that in mind, here’s what are and are not my goals:
1. I’m NOT trying to take back Neal Gorsuch’s seat or pack the court.
I’ve already confessed that if Democrats found themselves in the situation that Mitch McConnell found himself in after Scalia’s death, I’d be up for a special, one-time-only round of “well well well — it seems that the hunter has become the hunted” payback. It would truly be delicious; it would basically be Kill Bill with Chuck Schumer in the Uma Thurman role.
But when would that happen? It definitely won’t happen in the next three years, and probably won’t happen in the foreseeable future — too many planets have to align. At what point does trying to correct an injustice from the past become pathetic? At what point do you become Will Forte in that I Think You Should Leave sketch, trying to get revenge on a crying baby 30 years after the fact?
I’m deeply uncomfortable with the idea of adding justices. That’s the type of thing that dictators do, and after Trump, I’d like to move away from constitutionally iffy Executive Branch power moves. Adding justices is also the opposite of a sustainable solution; it will ignite a tit-for-tat cycle of adding justices that will only end when every man, woman, and child in the country is on the Supreme Court.
I also think that adding justices is extremely unlikely. Let’s recall that attempting to pack the court is on the short list of bad things FDR did, and other things on that list include “possibly cheated on his cousin with another cousin” and “put people in internment camps”. His proposal was killed by his own party, and this round of court packing fever doesn’t appear to be faring any better: The Washington Post says “a few” Democrats openly support the idea. And — though progressive activists will never, ever understand this concept no matter how many times you explain it to them — “a few” votes is not enough.
Plus, there’s that 6-3 conservative majority on the Supreme Court to contend with. Remember that?
2. I’m NOT trying to engineer a bipartisan court.
Pete Buttigieg put forward a plan for a major overhaul of the Court during the 2020 presidential primary. Oh, what heady days those were! Back when we asked big questions, like: Should we break up the banks? What about Medicare for All — should we push for that, or settle for adding a public option to Obamacare? How many trillions of dollars should we spend on green energy?
What I wonder is: Were we all fucking drunk? Why were we talking about that stuff? Why didn’t we debate things that might actually happen in some conceivable universe?
At any rate: I don’t really like Buttigieg’s plan. He was trying to do something that I don’t see as worthwhile goal: He was trying to basically guarantee a court with an even partisan split. I don’t see that as desirable; I think that the court should reflect voters’ preferences, not guarantee both parties equal footing no matter how badly they do in elections. Also, Buttigieg’s method for achieving his goal — a 15 member court with five members chosen by the other ten — was unwieldy and maybe not constitutional. Which brings me to my next point…
3. I AM trying to call for as little change as possible.
The more radical the change, the less likely it is to happen. Status quo bias is a powerful force, and the more radical your proposal, the more you sound like a cult leader trying to entice people to move to New Jonestown. Plus, every wrinkle you add is something new for people to dislike. Whether you’re reforming a centuries-old institution or trying to get people to agree on toppings for a pizza, less is more.
4. I AM trying to make it so that appointments are more evenly spread out across presidencies.
As I showed before, the number of seats that come open per presidential term is wildly uneven. Trump filled three seats, but Jimmy Carter filled zero. Poor Jimmy Carter — did he kick a leprechaun down the Capitol steps on Inauguration Day or something? That guy had the absolute worst luck.
The composition of the Court should be determined indirectly by the voters, not directly by the icy hand of the Reaper. But history shows that the latter might be a bigger factor. In the interest of fairness, and in the interest of making politics less of a morbid supper club in which we sit around like the high-rollers in Squid Game trying to figure out who will die next, I’m trying to tilt the balance of power towards the voters.
5. I AM trying to make it so that most of a justice’s time on the bench is spent during their prime.
Statisticians have basically figured out1 when baseball players peak: It’s at age 27. I don’t know exactly when judges peak, but I seriously doubt that it’s at 50, which is Amy Coney Barrett’s age, or 83, which is Breyer’s age. Ideally, we’d have judges who are old enough to have amassed some wisdom but young enough to be able to get through oral arguments without having to pause six times to use the bathroom.
Because of the obvious incentive to appoint young justices, nominees are getting younger even as people live longer. This chart from Bloomberg tells the story:
In the early days of the Republic, imminent death was the steam that made the machinery run. Did it really matter how old a nominee was? He’d just be dead of typhus or a snakebite in a month anyway, and so would you for that matter, so what would be the point of getting your wig in a twist? But times have changed; from 1789 to 1970, judges sat on the bench for an average of about 14 years, but since then, they typically hang around for 27. By my math, that’s almost double. Justices are starting younger and staying until they’re older, and it would be better if a judge’s tenure was more closely fitted to their peak.
6. I AM trying to make the confirmation process more regular.
I’m not sure that we fully realize just how big of a problem we have. Since Merrick Garland, we haven’t had a nominee sent to a Senate controlled by the opposition party. What will the Senate do when that happens? Is it still possible to have a justice confirmed with opposition party votes? Maybe it is — maybe a moderate nominee could win a few votes from the Manchin/Synyma2/Collins/Romney crowd. But maybe not. There would be a ton of pressure on the Majority Leader pull a McConnell and deny the Senate a vote, especially if it’s McConnell, because that’s his signature move.
We might have reached a point at which it’s only possible to have a nominee approved when the President’s party also holds the Senate. At the very least, we have an irregular process that allows multiple opportunities for randomness and skullduggery — skullduggery, I say! It might be possible to build a coalition for reform by drawing together lawmakers who want to impose some order on the chaos.
So, where does this lead me? It leads me to the most boring possible conclusion: I think we should impose 18 year term limits on Supreme Court seats. Seats would come open every two years, so, one per Congress, two per presidency. As of this writing, it is still not possible to keep people from dying, so a president might get an “extra” appointment if somebody dies during their term. But that would be the exception, not the rule.
This is not a new idea. Cornell Law Professor Robert Cramton proposed it in 2005. Groups including the bipartisan Commission on the Practice of Democratic Citizenship, the Center for American Progress, and Fix the Court have called for it, and Justices Kagan, Breyer, and Roberts have expressed support for the idea (or something like it). Here’s a New York Times op-ed calling for it, and House Democrats have written a bill, and the Presidential Commission on the Supreme Court said there’s bipartisan support for term limits — the point is: It’s not my idea. If I ever have an original idea, I’ll flag it, but this ain’t it.
It seems that 18 year term limits would achieve my goals. As little change as possible? Check — it would still be a nine person court with Justices nominated by the President and confirmed by the Senate, and Justices would serve for a length of time that’s traditionally about the norm. Appointments spread out among presidencies? Check — it would be two per term, with “extra” seats possible but not common, though if Jimmy Carter were to get a second term (still possible!) he’d somehow manage to get zero though I’m not sure exactly how. Justices generally serve during their peak years? Check — there’s a hard out on a judge’s tenure, and there’s no longer any incentive to appoint a Toddler Justice. (Side note: Would you watch a show called Toddler Justice? I might write a pilot.) And, finally: Make the confirmation process more regular? Check — it would be regular by definition, and if a party kept a seat open for two or even four years when that’s not the norm, people would notice.
The politics of making term limits happen are tricky to say the least. It would probably require a Constitutional amendment, and long story short: Reform will only happen if Republicans and Democrats reach a deal. Nobody’s going to muscle anything through. The votes required for that aren’t anywhere close to being there.
Which leads me to this conclusion: Court reform won’t happen until Democrats give up the dream of taking back the Gorsuch and Barrett seats. We will only get those seats back if provenance drops them into our lap. But Republicans won’t agree to any reform that erodes their majority, and we can’t muscle something through without them, so the situation is pretty clear: Giving up the Gorsuch and Barrett seats is a precondition of reform.
“Reform” shouldn’t mean “term limits” and/or “court packing” and/or “a forcibly balanced court” any more than “school” should mean “education” and/or “a kind of monkey” and/or “when you’re aroused by a video game character”. A word with that many meanings is useless. If we can coalesce around the idea that “reform” means “term limits” — or some other idea that can win votes — then there might be a future where reform can happen. But if we can’t, then our obviously broken system will just continue to be the system.
There is actually some debate over exactly when a baseball player’s peak occurs, but please, seamheads: Don’t attempt to draw me into a debate that could stretch for decades. I just don’t have the energy.
For the uninitiated: I give Kyrstyn Synyma “Lynyrd Skynyrd-style” spelling.
The Supreme Court Should Be Less of a Ghoulish Parlor Game In Which We Try To Guess When People Will Die
I’ve thought a lot about this problem and I fully agree with your solution. But frankly, I don’t understand any scenario that would bring Republicans to the table right now. The status quo is great with 6 seats that can be timed for retirement so that they are held pseudo-permanently.
But I have thought about expanding your idea of term limits and regularity. To my mind the courts of appeals should be consolidated into 8 circuits rather than 12/13 and to compensate we should just put many more judges on each court thus lessening slightly the ability to forum shop. But 8 circuits also provides a nice way of aligning appointments with Supreme Court appointments. Basically at the time of the appointment of each associate Justice, the term of a chief judge of a corresponding court of appeals would also end and thus come up for appointment. The president would nominate two judges, on chief judge for the court of appeals and one Supreme Court Justice. If after dual confirmation, the Supreme Court Justice is incapacitated for some reason or dies/resigns in scandal, their seat would automatically be filled by the corresponding chief judge for the remainder of the term. Now there are only 8 circuits in this scenario so Chief judges like all appeals court judges would be limited to a 16 year term. Meanwhile associate justices of the Supreme Court upon finishing their 16 years would remain on the court for an additional 2 years as Chief Justice. If a Chief Justice is incapacitated or dies, the most senior associate Justice would ascend to the chief position early and the corresponding chief judge of appeals would take their unfinished term on the Supreme Court.
I’ve also long thought that it’s really dumb the way we do thousands of judicial appointments in the federal system all individually needing nomination by the president and confirmation by the Senate. So to add to my proposed system of dual nominations, the president at the time of the appointment of the Supreme Court Justice and the corresponding chief judge of appeals, would nominate an associate chief judge of appeals to the circuit who’s 16 year cycle is exactly halfway through thus acting as the counterpart to the chief judge already on that circuit. Then the chief judge, associate chief judge and 3 senators representing states from that circuit (senators would rotate) would form a judicial selection committee to hire and then confirm by lot all the other judges for that court of appeals and all the district courts underneath. This would allow the judicial system to grow without their being high partisan stakes (right now there is a huge shortage of federal judges but no one wants to expand the lower courts because they don’t want to give the opposite party the power to appoint.)
Finally, I’ve thought about how do we divide the country into circuits that make logical sense, have roughly equal populations, and would allow for some partisan balance, given that we are empowering Senators from these states to pick judges outside the presidents control (as part of the committee with two presidentially appointed appeals judges - the chief and the associate chief). So I came up with this:
1. Pacific (CA, HI)
2. West (AK, WA, OR, ID, MT, NV, WY, UT, CO, AZ, NM, ND, SD, NE)
3. South (TX, LA, MS, AL)
4. Midwest (KS, OK, IA, MO, AR, TN, KY, OH)
5. Great Lakes (MN, WI, IL, IN, MI)
6. Southeast (FL, GA, SC, PR)
7. Atlantic (PA, WV, DE, MD, DC, VA, NC)
8. Northeast (ME, NH, VT, MA, RI, CT, NY, NJ)
Based on the 2020 census, these groupings would have populations within +/- 1.5% of each other. And if they were hypothetical states, there would be 2 solidly Democratic circuits, 2 solidly Republican circuits and 4 competitive circuits.
By automating the entire judicial system starting with the Supreme Court, the judiciary would hopefully gain more balanced trust among the public, retain greater humility itself, and would avoid legislating from the bench among other benefits. Also for any judicial appointment the maximum age at the start of your 16 year term would be 65. Ensuring the oldest Chief Justice would be a maximum of 83 at mandatory retirement and that would be an outlier.
Chuck Schumer as Uma Thurman-thanks for killing my fantasy imaginings….