The Supreme Court Was Broken Long Before the Leak

The NAACP Legal Defense and Educational Fund (LDF) is responsible for winning some of the most important cases in the history of the United States—but one of the most impressive testaments to the organization’s strength is the fact that it survived the “Summer of Eric,” back when I was one of its interns.

One day in June 1974, my boss assigned me a task even I knew I could not afford to mess up: filing a brief at the United States Supreme Court.

The next day, I hopped on a plane to Washington, landed at National Airport, grabbed a cab, and told the driver to take me to 1 First Street. Thinking back on it, he must have been seriously confused. What kind of twenty-three-year-old has business at the Supreme Court?

But he drove me there anyway—and I still remember what it felt like to see the building for the first time. My whole life, Washington had been in black-and-white, a city on a screen, where Dr. King had led marches; President Kennedy had delivered speeches; Thurgood Marshall, founder of the NAACP LDF, had argued cases. I was a New Yorker at heart, but when I climbed the steps of the Marble Palace, turned around, and looked at the Capitol, pillars straight out of the Pantheon all around me, I was in awe of this city.

After filing the brief, I jumped in a cab back to the airport and spent the entire flight combing through a pamphlet I had found in the building about the history of the Supreme Court. I was transfixed. In my first year at Columbia Law, I had read Plessy v. Ferguson and Dred Scott v. Sandford, so I didn’t have the mistaken impression that the court was perfect, but I had also learned about Brown v. Board of Education and Loving v. Virginia, Reynolds v. Sims and Miranda v. Arizona. And even as an iconoclastic law student, I believed the Supreme Court was fundamentally a force for good.

I have had a reverence for the judicial branch ever since. It’s why I became a judge. And when the Supreme Court started hearing cases that bore my name, I never lost sight of how cool that twenty-three-year-old intern would have thought that was; how mesmerized, how stunned, how proud he would have been. As attorney general, two of my best days were when President Obama’s nominees to the court were confirmed; and I still remember how touched I was when I first entered the chamber to watch my colleagues at the United States Department of Justice argue consequential cases.

That is the kind of respect I have for the highest court in the land. And it is with that history in mind that I argue that the mission of the Supreme Court has been compromised and that the institution is in need of reform.

***

Millions of Americans have been horrified—and terrified—to read a leaked draft Supreme Court opinion overturning Roe v. Wade. And I understand why there has been so much outrage. I’ve felt it myself. Because if anything remotely resembling what Justice Samuel Alito wrote becomes an official decision, it will be among the worst in the history of our country, an attack on women and on every citizen’s right to privacy we assumed was ours.

But, in all honesty, the decline of The Court—and its waning legitimacy—was clear long before.

For decades, the polarization of the Supreme Court has worried me—but reading the ruling in Shelby County v. Holder, the case that gutted the Voting Rights Act, was the moment that made me realize the court was facing a modern-day existential crisis. How, I kept asking myself, could five unelected judges, with lifetime appointments, gut a law that had been recently reauthorized by Congress in a historic bipartisan landslide, had been supported by every president since Johnson, and had, for nearly fifty years, secured the right to vote for millions of Americans?

There were plenty of past Supreme Court rulings that I didn’t agree with—but at least with those, I believed the justices had come by their opinions honestly; that they had written them on the basis of their understanding of the Constitution.

With Shelby, in contrast, I had a hard time convincing myself that this was still true. Because Congress had compiled such overwhelming evidence—thousands upon thousands of pages—that if the Voting Rights Act were overturned, access to the franchise would again come under attack. And in the end, that fact-finding was vindicated—not years down the line, but hours after Chief Justice Roberts announced his decision, when Texas moved forward with a suppressive bill that had previously been found to be unconstitutional.

That was when I realized I had to break a tradition that had been in place for generations.

***

From the day President Obama asked me to be attorney general, I had been looking forward to arguing a case at the Supreme Court, a tradition my predecessors from both political parties had embraced. And I was especially excited about the fact that I was all but guaranteed to win—since the attorney general is almost always sent to argue one of the relatively easy cases on the docket, leaving the big ones to the solicitor general.

But after Shelby, I came to the conclusion that I couldn’t do it. I didn’t want to pretend that this was a Supreme Court like any other; that the Justices were good-faith actors; that a tradition should be followed. They had, without a legitimate basis, undermined our most fundamental right, a right that Americans of past generations, some of whom looked like me, had died to secure: the right to vote. And my protest—a silent protest I haven’t told many people about until now—was that I wouldn’t appear in that court as attorney general of the United States.

In the years since, the erosion of trust in the Supreme Court has accelerated—as the court’s expanded conservative wing has not only continued attacking the right to vote but also delivered dubious decisions on everything from President Trump’s Muslim ban, which they declared constitutional, to Obamacare’s attempts to protect reproductive rights, which they declared unconstitutional, a harbinger of how they would begin to gut Roe v. Wade in the years ahead, despite the overwhelming support of the right to choose among the American people.

Some of these minoritarian rulings were in no small part the result of the fact that Republicans in the Senate, led by Mitch McConnell, had managed to steal a seat on the court, blocking President Obama’s choice, Merrick Garland, because, they claimed, he was nominated too close to the presidential election—in March 2020, 237 days before polls closed—but confirming Amy Coney Barrett, President Trump’s pick, even though she was nominated in September 2020, months later in the election cycle, when millions of people were already voting. It’s the kind of hypocrisy that makes the American people hate politics. And I don’t blame them. After reading the draft opinion that came out this week and its truly over the top language, how could you?

The good news is that it’s not hard to reform the Supreme Court—in fact, it has been restructured over and over again throughout American history. And you wouldn’t need a constitutional amendment to make it happen. You could do it through legislation.

But before diving into solutions, it’s worth clarifying what, exactly, is at the heart of the trouble with the Supreme Court as it’s currently constructed.

***

Many of the most pressing problems with the court can all be traced to something that sounds like a good idea: life tenure.

While elected officials would have to compete to stay in office, our founders decided Supreme Court justices should be allowed to keep their jobs until they died or chose to retire. The theory was that this would preserve the independence of the justices—not only from the other branches of government, which founders like Alexander Hamilton feared would “overpower, awe, or influence” the judicial branch, but also from the public. Essentially, they wanted justices to be able to decide cases based on their reading of the Constitution, not on a desire to curry favor or win reelection.

This all made sense—but there was one problem: the number of justices appointed by each president wound up being completely arbitrary. Franklin Delano Roosevelt, for instance, made eight nominations to the court, while Zachary Taylor, Andrew Johnson, and Jimmy Carter all made none.

At first, this wasn’t that big a deal, because presidents had a hard time anticipating the ideologies of the justices they appointed—and so the court did not often swing too far to either side. That’s why, from George Washington’s presidency through Abraham Lincoln’s, the Senate rarely exercised its confirmation authority to advise on and consent to Supreme Court nominees, generally signing off on them by voice vote.

Plus: People didn’t live that long back when America was founded, which meant that on average, vacancies came about around twice as frequently as they do today. This made battles for Supreme Court seats less contentious and ensured the court wouldn’t be dominated by any one ideology or group of justices for too long.

As you know, this has changed in recent years—for several reasons.

For one, because justices live longer, making vacancies rarer, the stakes of each one are extremely high. Congress has also become polarized, causing practically every debate and decision to become adversarial. And the justices themselves have begun to take a partisan approach to stepping aside: Early in American history, the vast majority of them died in the job. But in the years since 1950, four out of five justices have chosen to retire and, in general, have timed their retirement to take place while a president whose ideology they supported was in office.

This has, naturally, led to a cycle of even more perceived partisanship on the bench.

And as a result, both parties have treated every recent nomination, from Garland to Gorsuch to Kavanaugh to Barrett to Brown Jackson, as a war with the future of our country at stake. It’s an untenable state, but thankfully, it’s in our power to change it.

***

Here’s how I would fix the Supreme Court: In an ideal world, I would expand its size to counter the skullduggery of Republicans in stealing two Supreme Court seats. But, even if that didn’t happen, I would reform the way justices are nominated altogether. What would that look like?

First, I would make sure that every president has the opportunity to appoint the same number of justices per term: two—one in the first year, one in the third. This would mean the balance of the court would reflect the will of the people, rather than being driven by acts of God and strategically timed retirements. I would also mandate that the Senate vote on these nominations within two months of them being announced, so senators are more likely to evaluate each potential justice on their own merit, knowing it will be much harder for them to leave a vacancy open until a new president takes office. (The Senate could, theoretically, reject each of a president’s nominees every two months, but over time, that would carry tremendous political costs.)

And second, I would establish eighteen-year terms, because life tenure no longer makes any sense. As none other than Chief Justice John Roberts once wrote:

The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.

No matter our disagreements, on this issue, he couldn’t be more right. And the people of this country agree—with polls showing more than three in four Americans opposed to life tenure. That’s because it’s common sense that no one should be trusted in a position of such enormous authority for life, especially given how much longer people are living these days.

For context: The average tenure of a justice is estimated to double over the next century. This would, in turn, make vacancies even more rare—and the fights over them even more high stakes, further dooming the Supreme Court to a perpetual state of conflict.

Eighteen-year terms would still be long enough to insulate justices from the whims of any one political moment. And with appointments taking place every two years, this system would have the added benefit of enabling us to ultimately maintain a Supreme Court with nine seats in the long run, even if the number of justices expands in the short term, once everyone currently sitting on the bench has stepped down. (That is why, unlike the chief justice, I am in favor of eighteen-year terms rather than fifteen-year ones, which would result in an ever-changing court size.)

The policies would be a win for all parties involved—for senators who could once again advise on and consent to nominations with an eye toward what’s good for America, not what’s good for their party; for justices, who could focus on doing their jobs without having to think about when, where, and how they are going to step aside; and for the American people, whose faith in the highest court in the land—and whose rights, including the right to choose—could be restored.

***

I’ll be honest: if I were a law school student today and I were asked to file a brief at the Supreme Court, I’m not sure I would have that same feeling in my heart that I did all those decades ago—and that’s a shame. Because one of the things that makes America so special, one of the reasons I have been so honored to devote my life to serving this country, is our judicial system.

No, it’s never been perfect, and I knew that, even as a 23-year-old walking up those marble steps for the first time. But I never wavered in my belief that the nine people who sat on that bench went to work every day trying to make America a more just place than it was the day before.

What I would give to feel that way again.

Adapted from the book OUR UNFINISHED MARCH: The Violent Past and Imperiled Future of the Vote—A History, a Crisis, a Plan by Eric Holder and Sam Koppelman, to be published May 10. Copyright © 2022 by Eric H. Holder, Jr. Published by One World, an imprint of Random House, a division of Penguin Random House LLC.