Reform the Supreme Court? Heh! A Classic Catch-22


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Loss of confidence in and integrity of the Supreme Court has been on a lot of people’s minds.  And no wonder.  The justices aren’t getting a lot of “likes” these days.  A recent Gallup poll found that only 25 percent of Americans had confidence in the court.  Of course, it’s not the Court’s job to be popular.  A good thing it’s not.  If there were a popularity contest, the justices might collectively be running neck-and-neck with monkeypox.

During the 2020 Presidential campaign, Joe Biden said he’d form a commission to look at Supreme Court reforms.  He kept his word, and late last year his Presidential Commission on the Supreme Court of the United States issued a final draft report.  It went through the list of reforms that various people have proposed, supplying historical background, and arguments pro and con.  The commission didn’t recommend any action, but it laid out the landscapes for reform in ways that weren’t very encouraging.

It also suggested that Supreme Court “legitimacy” could mean a couple of different things: “Legitimacy might refer to the general level of support that the Court has among the people of the United States, perhaps as reflected in public opinion polls. Or, in a related and more specific use of the term, it might refer to whether people who disagree with a decision by the Court are willing to comply with it.”

If people stop believing in the Court, we’re in trouble.  As Alexander Hamilton said, the Court controls neither the sword nor the purse.  It needs the support of the people who do.  Historically, that support has been forthcoming: The court’s landmark Brown v. Board of Education decision, which said separate in public education was inherently unequal, probably wouldn’t have amounted to much if President Eisenhower hadn’t sent the 101st Airborne into Little Rock to enforce school desegregation.

The Constitution created the judiciary as a separate, independent branch of the federal government, including a supreme court.  But it also gave Congress the power to establish the lower federal courts.  Article 3 proclaims that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  The Constitution also requires Senate “advice and consent” for appointments to the Supreme Court.

Congress could expand the number of justices or set term limits or remove certain issues from judicial review. Of course, any law that Congress passed on this subject would be challenged, and who would ultimately rule on the challenges?  The Supreme Court. That’s the Catch-22 in reform of the Court.

Moreover, the Senate could revise its own confirmation process for Supreme Court justices.  It could bring back the 60-vote majority formerly applied to Supreme Court nominations. University of Washington constitutional law professor Hugh Spitzer noted recently in a Seattle Times op ed that a super-majority would force administrations of both parties to nominate more moderate candidates.  “[T]hrough the end of the 20th century,” Spitzer wrote, “presidents from both parties continued appointing middle-of-the-road justices that were confirmed by a Senate in which 60 votes were needed to do anything. This kept the Supreme Court moderate, swinging from slightly liberal to moderately conservative. The court prioritized precedent and cautious change.”  But Spitzer added that a return to 60-vote majorities wouldn’t happen any time soon.  

Or Congress could impose a code of ethics.  Other courts have these codes, but the Supremes don’t.  “Currently, the Justices are the only judges in the country not bound by some code of ethics governing their behavior,” Daniel Epps and Ganesh Sitaraman write in the Harvard Law Review. “Observers have raised concerns about various episodes involving the Justices in recent years, such as the liberal Justices’ going on foreign trips paid for by outside organizations. or the late Justice Scalia’s hunting trip with Vice President Dick Cheney weeks before the Court heard a case in which the Vice President was the petitioner. 

Epps and Sitaraman say that “we see any major structural changes as unlikely in the short term. Does that mean all statutory reforms are impossible? We think not. One obvious starting place would be the imposition of ethics rules on the Justices.”

But maybe, on second thought, the Justices would rather do it themselves.  “The Justices could choose to adopt rules constraining themselves,” Epps and Sitaraman suggest. “They might choose to do so in order to improve perceptions of the Court among members of the public. But doing so might also be a way to help the Court stave off more aggressive reform efforts by Congress down the road. The most obvious starting point would be for the Justices to voluntarily adopt ethics rules.”

People also complain about the Senate confirmation process for Justices.  As well they might.  Conservatives can say “Bork.” Liberals can say “Garland.”

Robert Bork was the lower-court judge and former U.S. Solicitor General whom liberals attacked for his conservative views.  (As Solicitor General, Bork had been the number-three man in the Justice Department at the time of the “Saturday Night Massacre,” in which then-President Richard Nixon wanted the Justice Department to fire the special prosecutor investigating the Watergate scandal.  Nixon told Attorney General Elliot Richardson to fire him.  Richardson refused and resigned.  Then Nixon told Deputy Attorney General William Ruckelshaus to fire him.  Ruckelshaus refused and resigned.  Finally, Nixon told the number-three man, Bork, to fire the prosecutor.  Bork did.) 

The successful ideological opposition to Bork (coupled, some say, with Bork’s less-than-endearing performance before the committee) allegedly “changed everything forever.” (Nixon had two nominees shot down, not merely because they were conservative but also because – unlike Bork —  they didn’t seem to be very good.  While one of the nominees, Harrold Carswell, was being debated, Nebraska’s Republican Senator Roman Hruska memorably said, “Even if [Carswell] were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?”)

And then, Republican Senate majority leader Mitch McConnell refused to even hold a hearing for Barack Obama’s nominee, Merrick Garland.  As many people have pointed out, McConnell justified this by saying there was only one year left in Obama’s last turn – and then rammed through the confirmation of Amy Coney Barrett when Donald Trump had less than a month in his term.  And now, of course, McConnell has said that if the Republicans get a Senate majority for the next two years, he probably won’t hold hearings on anyone Biden might nominate.  

Ol’ Mitch got a slight head start on the Trump era of public shamelessness.  But arguably, his shamelessness just peeled off a veneer.  If he had held hearings with rejection on a straight party-line vote for a forgone conclusion, would anything substantive have changed?  If we’re talking about results, the answer is clearly no.  If we’re talking about public confidence in the Supreme Court and the process by which justices are chosen, I think the answer is yes.  

Anyone who watches Supreme Court confirmation hearings has seen that they – like most other Congressional hearings – are primarily theater.  The process does not seem to screen out people accused of questionable personal behavior.  Allegations of misconduct didn’t derail the 2018 confirmation of Brett Kavanaugh or the confirmation in 1991 of Clarence Thomas.  And the process does not encourage candor.  See the Trump appointees’ ringing endorsements of precedent when asked about Roe v. Wade.

One could improve the confirmation process by lowering the stakes.  If a justice could serve only, say, 18 years, no one would worry about putting him or her there for perhaps half a century.  “The best solution,” Spitzer wrote, “is one proposed by a conservative legal scholar some years ago . . . : 18-year effective terms for each Supreme Court justice, with appointments offset so that each president, each term, has two appointments. The court would thus change gradually.”  To be sure, Congress could do this on its own.  “[N]othing in the Constitution,” Spitzer explained, “prevents Congress from writing a judiciary statute that rotates justices off the Supreme Court and down to the Court of Appeals after 18 years of service on the top bench.”

There are certainly those who think we should just pack the court, adding justices to dilute the influence of the current conservative majority.  There’s nothing sacred about the number 9.  The number of justices has risen and fallen before.

When people think of court-packing, they tend to recall Franklin Delano Roosevelt’s attempt to pack the court in the 1930s.  The conservative court had routinely been ruling New Deal legislation unconstitutional.  Roosevelt wanted to stack the court with other judges who would rule his way.  He met a lot of opposition, Congress voted it down, and he dropped the idea.  But he basically won the larger war, and even before Congress voted, the court started rubber-stamping New Deal legislation.  Later, vacancies let Roosevelt appoint New Deal partisans, and legally, he had even clearer sailing.

Court packing might be quick, but it wouldn’t be final. There’s no way expanding the court wouldn’t be seen as – and wouldn’t be – a highly partisan “reform.”  And – like prosecuting Donald Trump for trying to engineer a coup – it’s subject to the criticism “if we do it now, they’ll do it when they have a majority.”  

Another way for reform is to give Congress the right to second-guess some Court decisions. If we could amend the constitution, we could give Congress the power – with, perhaps, a super-majority – to override a Supreme Court decision striking down a law Congress has passed.  The commission noted that it had heard some proposals “to disempower the Court in relation to the political branches, particularly to limit the Court’s power to declare legislative acts unconstitutional. This category includes modifying the Court’s jurisdiction, as well as changing the Court’s voting rules and the standards of review it uses when considering whether to invalidate the actions of elected officials. Finally, it includes proposals to allow Congress to override constitutional decisions of the Supreme Court and other courts.” 

A Congressional override would arguably make the ultimate decision about constitutionality more democratic.  (Let’s not dwell on the well-known fact that the Senate is chosen in a way that doesn’t even approach the principle of “one person one vote.”)  But is that what we want?  Isn’t the Court, at best, a defender of the rights of unpopular minorities?  And hasn’t the legal system relied since 1803 on Chief Justice John Marshall’s famous statement that it “is emphatically the province and duty of the Judicial Department to say what the law is.” 

With an override, it would become the province and duty of Congress. In other words, the people who make the laws would also get the last word on whether or not those laws are constitutional.  That may be what we want, but I doubt it.  

What about the idea that the Court can protect minorities against the “tyranny of the majority?”  Forget it.

A more limited way to restrict the Court would be to give Congress the ability to override only decisions that didn’t involve constitutionality.  After all, most Court decisions involve not grand constitutional issues but the interpretation and application of statutes.  Congress can certainly deal with a lot of those issues now.

I’ve read that Congress “overturned” the Court’s decision in the Lilly Ledbetter case, but that’s not true.  Ledbetter had worked for Goodyear for 19 years.  At the end of that time, she realized she was being paid less than men for equivalent work.  She sued.  Her case reached the Supreme Court, which ruled 5-4 that the Civil Rights Act, which made unequal pay illegal, clearly required the worker to take legal action within 180 days.  Congress responded with the Lilly Ledbetter Equal Pay Act, the first piece of legislation that brand-new President Barack Obama signed into law.  The legislation made it clear that the 180-day clock started running after every paycheck a worker received. This did not “overrule” the court.  It removed a flaw or resolved an ambiguity in the law.  Congress actually did its job.  (And it made the law say clearly what Ruth Bader Ginsberg, in a dissent, had argued it really meant all along.)

Other countries already have true legislative overrides.  But things haven’t always worked out so well.  “[W]e hope,” the commission said, “that Congress would . . . consider what future Congresses, armed with the same constitutional powers, might someday attempt. Indeed, in recent years, we have seen democratic governments ‘regress’ or ‘backslide’ with respect to judicial independence. This has come about through electoral majorities using their power to restructure previously independent institutions, including courts, to favor the political agendas of those governments.”

Any significant change would require either a Constitutional amendment – a very tough thing to achieve and a door we probably shouldn’t open at this particular stage of our history — or an act of Congress. The Commission suggests that we could vote on a Constitutional amendment that would make it easier to pass other amendments to the Constitution. Passing such an amendment would be problematic.  Besides, in the current state of our politics, it would seem to open a real Pandora’s box.  

As for Congress – does anyone doubt that it’s currently dysfunctional?  What are the chances of getting enough votes for any sensible reform?  And if Congress now or after the mid-terms actually coalesced around changing the Court, should we be encouraged or scared?  Besides, once again, the Court itself might ultimately rule on the constitutionality of any law that altered its way of doing business. 

Is there a way around that?  Not really.  It’s a classic Catch 22.

It’s easy to agree that the integrity of and public confidence in the Court are imperiled.  It’s harder to sort out what people mean when they talk about it.  It has been hard to distinguish many people’s concern for the Court as an institution from dislike of the recent decisions.  Let’s face it: Most of us want an independent, non-partisan Supreme Court. And we want it to independently rule our way.


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