The Supreme Court of the United States, photographed on Tuesday, Dec. 7, 2021 in Washington, DC.
Kent Nishimura-Los Angeles Times
Ideas
December 10, 2021 7:00 AM EST
Roosevelt is a professor of constitutional law at the University of Pennsylvania Carey School of Law and the author of The Nation that Never Was: Reconstructing America’s Story.

I spent the last seven months on President Biden’s Supreme Court commission, talking, listening, and sometimes arguing with experts from a variety of legal backgrounds—activists, professors, and former judges. I went into the process thinking that the system was working but that improvements were possible. I came out scared. Our system is broken in two obvious ways, that threatens America’s self-governance. One of them is about the long-term legitimacy of the judiciary. The other is an immediate crisis.

These problems overlap. The first is mostly about we could call high politics, or theories of constitutional interpretation. It is generated by the combination of life tenure and Senate confirmation for the Supreme Court, and it is that the composition of the Court is not tied in a predictable and uniform way to the outcome of presidential elections. Some presidents appoint several Justices; some presidents appoint none. What determines how many appointments a president gets is a combination of pure luck and partisan hardball. We do not staff any other branch of our government that way, and it has distorted the relationship between the Court and democracy.

The Framers intended that the American people, through the elections of presidents and senators, would have ultimate, though indirect, control of the composition of the Supreme Court. But the Framers did not anticipate the party system, and that throws a wrench in the works. Under the current system, a party that wins a minority of presidential elections may nonetheless end up appointing a majority of justices. And once a majority is obtained, strategic retirements (justices stepping down under a president of the same party that appointed them) can preserve it, even if the party wins only one in three or even one in four presidential elections going forward. The result is a court that reflects minority views and values—not necessarily in a partisan political way, but in terms of Court’s approach to constitutional interpretation. One does not have to believe that judges are politicians in robes to understand that who the judges are matters. Judges appointed by Republican presidents generally vote and reason differently from those appointed by Democratic presidents—especially now that nominees are more carefully screened for ideological soundness. When a minority party appoints a majority of the Supreme Court, the Court will tend to issue decisions based on a minority understanding of what the Constitution means and how it should be interpreted.

The most prominent face of this problem today is abortion. Generally speaking, Democratic appointees support abortion rights; Republican appointees do not. (The possibility that justices will surprise us with their votes exists, but it has diminished.) Going back to the appointment of Justice Thomas, currently the longest-serving Justice, Democrats have won five out of nine presidential elections (and won the popular vote in seven out of nine), but they have appointed only three of the nine sitting Justices. Thus it will not be surprising if the national majority’s view about Roe v. Wade does not prevail on the Court, even while national polls show strong majorities in support of preserving Roe. And if nothing is done, it will not be surprising if the 6-3 Republican advantage persists for decades, even if Democrats continue to win presidential elections.

The solution to this problem is simple: term limits for Supreme Court Justices, with staggered eighteen-year terms so that each president gets two appointments per four-year term. That is a nonpartisan, good-government reform that has broad support—but not as much as it deserves. It will not immediately restore the Supreme Court to where it would be if past presidents had equal influence, but it will fix the system going forward.

Read More: How to Unite a Divided America

The second problem is related, but somewhat broader. It is generated by the structure of our constitution more generally, which allows a well-placed minority to take over every branch of the federal government.

As we have seen in recent years, the electoral college allows a candidate to win the presidency while receiving a minority of the popular vote. The rule that each state is equally represented in the Senate means that Senators representing a minority of the population can control their chamber. A minority can take over the House of Representatives through partisan gerrymanders. And a president elected by a minority of the people can nominate judges who are then confirmed by Senators representing a minority of the people. Once in power, the minority can try to retain its position by further distorting the democratic process: gerrymanders, voter suppression, and judicial invalidation of attempts to protect voting rights

All of this is happening now. We are witnessing a minority takeover of our democracy. The Supreme Court has stood by in the face of some anti-democratic actions. It has allowed partisan gerrymanders, which distort the elections of state legislatures and federal Representatives. (In Wisconsin in 2018, Democrats received 53% of the votes cast for the state Assembly—and won 36% of the seats.) It has allowed states to impose on burdens on voting as a response to imaginary threats of fraud. More striking, the Court has itself intervened in the political process. In 2013, it gutted the Voting Rights Act, which for fifty years had protected the electoral participation of minorities. Recent months have seen states going even farther in reshaping their electoral systems, giving partisan officials more power to refuse to accept results they don’t like.

This is a problem of partisan politics. It is the Republican party attacking democracy, and the Supreme Court is helping it. Because it is partisan phenomenon, there is no nonpartisan good-government fix for it. If term limits had been in place earlier, we might not have come to this point, because the Supreme Court would not have facilitated the minoritarian takeover. If term limits are enacted now, they may eventually give us a Court that is again willing to step in to protect democracy, rather than the undermine it. But it is not at all clear that we have the luxury of time.

The only reform that fixes this problem now is court expansion. That could give us a majority of Justices who would defend democracy against these assaults instead of participating in them. I have always viewed expansion with great skepticism, as a last resort, the fire axe in the glass case on the wall. But we may well be at the point of breaking that glass now. Our constitutional system has produced a playing field that tilts toward the minority. This is not because wise Framers wanted it that way—they didn’t foresee political parties at all. It is because our political divide maps well onto an urban-rural split, so that Democrats tend to control high-population states and Republicans low-population ones. That means that the small-state bias of the Senate and the Electoral college is now a partisan bias. Add in the effects of partisan gerrymanders, and Democrats typically need several percentage points more than a simple majority of the national vote to win. Add in voter suppression and this seems increasingly unlikely. Add in the attempts to delegitimize Democratic victories and the talk of gerrymandered state legislatures rejecting electoral results they don’t like, and the hill gets even steeper. Absent some decisive action, we could be looking at generations of minority control.

There are political considerations here, to be sure. The one put forward most often is that if Democrats expand the Court, Republicans will do so in response as soon as they get the chance. That’s possible, but battles over the court are already in a downward spiral of retaliation—just ask Merrick Garland. Game theory actually suggests that the way to prevent an opponent from repeatedly taking advantage of you is to show that you will fight back. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Refusing to consider any Obama nominee (and pledging to do the same to Hillary Clinton if she won) is exactly that.

Those are the two points that everyone should take away from the Commission report, points that are presented but muffled by wishful bromides about neutral judges and myopic defense of the status quo. Court expansion may be the only thing that will save our democracy for the next generation.

 

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