One way to address the issue starts with the type of people nominated and confirmed to be federal judges. To be sure, judges are not and cannot be wholly impartial. They are human and, like all people, have biases that affect their decision-making. But efforts can be made to ensure that judges have a broader range of lived experiences so that they do not systemically skew their decisions to the detriment of the less powerful. To that end, progressives should focus on nominating and confirming fair-minded judges with diverse backgrounds, rather than narrow-minded conservative elitists.
Given the breadth of the problem, however, policymakers also need to consider more far-reaching approaches, such as undoing conservative court packing, reducing the influence of partisan judges, and ensuring greater judicial accountability. In addition, efforts must be taken to ensure that the federal judiciary works for more than merely corporations and the wealthiest few.
All Americans deserve a fair chance to bring their claims before federal courts, regardless of net worth or insider connections. Barriers to justice—such as forced arbitration, arbitrary pleading standards, and other obstacles—must be eliminated. Restoring access to the courts is necessary to address corporate abuse and government wrongdoing, as well as to fully realize civil and economic rights.
Reforming the makeup of federal courts and improving access to justice are important and mutually dependent goals. Similarly, ensuring that federal courts are fair makes little difference if people are kept from having their cases heard. By implementing reforms in both areas—altering the makeup of the federal bench and improving access to the courts—the judicial system can be rebuilt and justice can be restored. As partisanship has deepened and conservative court packing has picked up steam, reformers have responded by putting forth numerous recommendations for addressing these issues.
Proposals have run the gamut from imposing term limits on federal judges and Supreme Court justices to changing the structure of the court itself. To date, most of the debate has focused on whether significant reform is needed or wise. But to have a truly informed discussion, policymakers need a more detailed understanding of available options so that they can evaluate their strengths and weaknesses—and the extent to which suggested proposals are properly responsive to the problem at hand. In evaluating structural reforms to the Supreme Court and the federal judiciary, several factors should be considered.
Norm-breaking is discouraged by undoing its beneficial effects for the norm-breakers; if the beneficial effects are allowed to stand, lawmakers will continue to ignore legal and procedural norms when it suits them, without fear of repercussion. For instance, judicial reform proposals that accept the current packed Supreme Court as a baseline encourage further norm-breaking.
Moreover, proposals that make it harder to overturn precedents established by the packed court do the same. Another important factor to consider is whether a specific proposal is likely to increase or decrease politicization of the Supreme Court, either because it creates more moderating influences on the court or because the influence of individual partisan justices is reduced. Moreover, proposals should be evaluated as to the extent they would be stable over time. This includes assessing the risk that a proposal would result in escalating policy responses from those opposed to it and the likelihood that any attempted escalating response would be successful within a reasonable time period.
Policymakers should also be attentive to the extent that the success of a proposal relies on adherence to norms, given the lack of such adherence in recent times. When it comes to the various options for restoring fair-mindedness to the judiciary, the authors evaluate the following proposals:.
The need for structural reform in the federal judicial system
A panel would be chosen at random from among the pool of all appellate judges and current justices, and that panel would hear and decide cases for a set time period, after which a new panel would be constituted. A separate panel would be responsible for reviewing and granting certiorari. During this time, selected judges could temporarily vacate their positions on lower federal courts so that they would not be responsible for two full caseloads.
Such a proposal would limit the ability of any one justice to exercise outsize influence, as they would hear and vote on only a limited number of cases. It would make it harder for ideological judges to drive certain views through the certiorari process, since it would be a different panel that would hear the cases.
In addition, it is possible that such an approach would lead to a more modest Supreme Court that more closely hews to precedent, given that the members would only temporarily be hearing cases as members of the Supreme Court before returning to their appellate circuits. Rotating panels would also help prevent the judicial favoritism toward certain lawyers or groups that currently plagues the court. Ultimately, the result would be a fairer and more objective bench.
Furthermore, rotating panels could help address diversity concerns.
Although a number of circuit court judges attended Ivy League law schools, many did not, hailing instead from state and local universities. There is also the concern that, rather than eliminating politicization, this approach could actually expand it with respect to circuit nominations.
Nomination fights over appellate judgeships would be more intense given the greater influence any one appellate judge could wield as part of a Supreme Court panel. This proposal could exacerbate those fights and lead conservatives to try to appoint even more extreme nominees.
In addition, this proposal would not address the harmful effects of conservative court packing to date since the precedents set by the current packed Supreme Court would remain, and likely prove much more difficult to overturn. There are practical considerations as well.
Establishing a rotating panel of Supreme Court justices could instill greater randomness into court decisions, causing significant swings in the law that would be detrimental to society as a whole. It could lead to far too many Supreme Court precedents being overturned, or far too few. Furthermore, it is always possible that the composition of a randomly selected bench would end up being even more extreme or less diverse than the current court—though with the addition of a supermajority requirement for overturning statutes, the extent of the negative impact of such a panel would be lessened.
As a result, ideological majorities have been able to establish extreme precedent that hurts everyday Americans.
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To address this, the Supreme Court could be expanded to ensure an equal number of justices appointed by presidents of the two major political parties. An evenly split Supreme Court would eliminate the unfettered power of ideological majorities and result in fewer extreme decisions, since it would require justices to compromise and engage robustly with those on the bench who do not share their ideological views. To reach majority consensus, justices would have to find middle ground or narrow the scope of their rulings.
However, an ideologically split Supreme Court would likely lock in many troubling precedents since it would be less likely that this newly formed court would reach consensus to overturn them. Some critics also worry that such an arrangement would effectively render the Supreme Court unable to operate and create problems with legal uniformity across the country.
Structural Reforms to the Federal Judiciary
But law professor and Supreme Court scholar Eric Segall argues that this fear is likely overstated:. One very significant concern with this approach is how to ensure that the balance would be maintained over time, given that it would either require presidents of both parties to honor the system or the partisan representation requirements to be written into statute, raising challenging legal issues. One option is to have a bipartisan commission provide presidents with a list of potential nominees from which to choose.
Another proposal along these lines is to expand the size of the Supreme Court to 15, with five justices appointed by a Republican president, five justices appointed by a Democratic president, and five justices selected unanimously or by supermajority from the lower courts by the other 10 members. Requiring sitting Supreme Court justices to reach unanimous or supermajority consent on new appointees would help to ensure that only judges with moderate temperament round out the court, as they would have to be acceptable choices to most of the sitting justices.
However, this proposal raises the same concern about how the balance would be maintained over time, and perhaps most importantly, there are serious questions as to how the 10 members could select the remaining five justices in a constitutionally defensible manner. Another approach is to address conservative court packing head-on. In theory, this should not have been a problem, since Supreme Court justices had often been confirmed during times of divided government in the past.
An Obama nominee would have altered the balance of the Supreme Court so that, for the first time in nearly 50 years, conservative appointees would not be the majority on the court. Jon Huntsman Jr. R-UT and former Sen. Even highly-contentious nomination battles in the past … followed the normal process of hearings and an up-or-down vote. The effort to steal this Supreme Court seat had real implications for the American people. During that time, it deadlocked on important cases, including one that would have prevented the inhumane deportation of immigrant families.
Justice Neil Gorsuch was appointed by President Trump and confirmed by the Senate on April 7, , securing conservative control over the Supreme Court. To address this conservative court packing, policymakers could seek to undo its effects by expanding the size of the Supreme Court under the next progressive president in order to allow for the appointment of additional justices.
Correcting prior partisan court packing has historical precedent. In , after Thomas Jefferson was elected president, the outgoing majority party in Congress—the Federalists—decreased the size of the Supreme Court from six to five members in order to prevent him from filling a vacancy on the court.
The Federal Courts: Challenge and Reform
The more well-known historical example, however, is that of former President Franklin Delano Roosevelt. In , Roosevelt threatened to expand the Supreme Court from nine justices to as many as By stacking the court with appointees of his choice, Roosevelt hoped that New Deal policies would be implemented without delay. While Roosevelt faced significant political opposition to this proposal, shortly after announcing his intentions, conservative Justice Owen Roberts joined with the progressive justices in West Coast Hotel Co. This approach has the benefit of directly addressing the issues caused by conservative court packing, including harmful precedents established by the current packed Supreme Court.
However, there are worries that adding justices to the court could result in a judicial arms race between conservatives and progressives in which each side seeks to expand the size of the court when it has the ability to do so. If the court is expanded, it is possible—or even likely—that upon retaking power, conservatives would seek to further expand it. At some point, a continued back and forth might lead to public frustration and concern.
Therefore, compared with other reforms, this approach would likely be less stable over time and could potentially harden the recent politicization of the court. The American public could also end up viewing the Supreme Court as nothing more than another political body, weakening respect for and trust in its rulings. This risk is likely heightened by the significant public attention that would attach to any effort to add justices.
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Moreover, adding justices would not reduce the significant role that chance plays in the makeup of the Supreme Court, as an unexpected vacancy could shift the power balance in the court to either direction. But these concerns must be viewed in light of the current reality: Conservatives are already engaged in a massive court packing effort that has politicized the judiciary to an unprecedented degree. The question is not whether to pack the courts but how to respond to it. Moreover, they should consider that concerns about the court are likely to arise in the absence of any action too, as the conservative-packed Supreme Court overturns or undermines popular long-standing rights and democratically enacted laws.
It is worth noting that this proposal has application beyond the Supreme Court as well; given conservative efforts to pack the appellate courts, policymakers could adopt a similar approach to that issue by adding new circuit judgeships. Setting term limits for Supreme Court justices and federal judges is a particularly popular reform among legal scholars and the public alike. Over the past years alone, average life expectancy in the United States has increased from an average of about 38 years to nearly 80 years. Supreme Court justices who served between and , on average, held their posts for less than 10 years, vacating the bench before the age of Congress does not necessarily need to pass a constitutional amendment to establish term limits for federal judges.
Rather, term limits may be established through simple legislation. A number of proposals for term limits have emerged over the years, but the most popular is for year nonrenewable terms. Alternatively, they could choose to be reassigned to one of the circuit or district courts. Judges serving on other federal courts could similarly be delegated to senior nonactive status once their term expires. Regardless of their new posts, judges would retain their original salaries.
And if they were to die or retire before their term expired, the sitting president would be empowered to appoint a temporary justice from the circuit or district courts to fill the open position until the term of the former justice was set to expire. Once a permanent replacement was appointed, temporary judges would go back to serving on the federal court from which they came. This would help to avoid the problem of allowing a single president to dictate the makeup of the federal judiciary for a generation simply by entering office at an opportune time.
To the extent this is a concern, however, term limits could be coupled with an expansion of the Supreme Court to ensure that no single president is able to appoint a substantial percentage of justices. There are a number of benefits to term limits. They have the potential to increase diversity by allowing for new appointments while simultaneously diminishing the influence of any one judge, since judges would be cycled in and out more frequently.