Pack the center: How Democrats and Republicans can fix the Supreme Court, together

Greg Nash

Whether you believe Justice Kennedy’s retirement from the Supreme Court is cause for celebration or misery, the last thing American democracy needs now is a nasty fight that further drags our nation’s highest court through the mud of politics.

In the middle of an election year, with the Russia investigation looming, North Korea threatening, and a migrant crisis tearing us at the seams, we desperately need all Americans to be able to trust that the court that upholds or strikes down the laws that govern our lives is, above all, an independent, impartial, and fair institution not poisoned by politics. We’ve lost that trust, and must explore ways to rebuild it — however ambitious or unlikely.

Some have proposed term limits on Supreme Court justices. This is a good idea, but it’s only one arrow in the quiver, and it would likely require a terribly difficult constitutional amendment. Others argue that it’s time for Democrats to “fight dirty, too,” by increasing the size of the Court and “packing” it with new liberal justices. This one would be a treacherous mistake. It risks pushing public opinion of the Supreme Court over the edge in a way that the actions of Mitch McConnell have not, and could result in citizens and states no longer obeying the Court’s decisions. The fabric of our laws and country would then unravel past the point of return.

Instead, I want to propose an effective way to fix the Supreme Court and restore its high purpose: Pack the center, together.

If the Democrats retake the White House and Senate in 2020, they will be under much pressure from their base to pack the court with a handful of new liberal justices. Instead, with a renewed upper hand, they should offer an alternative to Republicans that serves the long-term interests of the country above party: add four new justices who are esteemed, ideologically moderate, and selected by the two parties together.

This would bring a number of benefits our republic sorely needs. First, a Court that functions around a moderate middle will be both more reliably nonpartisan and less often viewed as driven by politics. Increasing the Court’s numbers to a manageable 13 justices will not only de-escalate the current high stakes of Court nominations, but it will also lower the chances that any decision turns on the opinion of just one justice.

And while some would like to see a Court full of moderates only, it’s likely a benefit to have a Court with both a strong middle and justices who are consistently on the ideological wings. The moderate justices will be incentivized to work with these peers to build consensus decisions, but the ideological stances taken by the more partisan justices on tough issues of the day will also provide strong guideposts for shaping future decisions. And as recent Pew Research polling shows that a third of Americans still have a mix of conservative and liberal views, this would be a court that represents the makeup of the United States.

The result — a Court built by bipartisan agreement and balance, with five justices in the center, four conservatives, and four liberals — has the prospect of enduring. When a seat belonging to one of the moderate justices becomes vacant, there will be strong pressure to respect the agreement and fill it with another moderate that both sides choose together. Ideally, consensus builds that the Chief Justice should always be a moderate, too.

And finally — and perhaps most importantly — this grand agreement will show our country that even when we disagree, we can work together to build trust in something greater and longer-lasting than today’s news cycle or a presidential term. After all, the Court is the final arbiter of the laws that govern us, together.

Realists will argue that it’s highly unlikely that Republicans would accept such a deal, because conservatives have locked down the Court for at least a generation. They are no doubt correct, and the cards are stacked against this plan. But now is the time for expansive thinking about what our political process should be, and there are still many Republicans who know and believe two things: That overall trust in the judiciary is paramount to the health of our country, and that the winds of shifting demographics are likely not in their favor. They could spike the Supreme Court football for the next twenty to thirty years, but a bitter win in one generation may mean a doubly painful loss in the next.

It seems to me that the 2020 and 2022 Senate maps both are looking advantageous for Democrats, and they’ll have an important choice to make if they find themselves back in power: Pursue short-term gain and put our democracy in further peril, or reach across the aisle to those patriotic Republican senators who know that the importance of trust in the Supreme Court goes far beyond party lines. When your sibling smashes the game board, the best brothers and sisters remember that you’re forever part of the same family.

New ideas for fixing the Court are needed. Depending on your point of view, this one may seem either fresh or naive, but it isn’t quite new. The Constitution says that the President shall appoint justices with the “Advice and Consent of the Senate.” Now is high time to fulfill its text. To pull back from the brink and save our country, we need both parties to pack the Supreme Court, together.

Alex Kaplan is the Policy Director at Represent.Us, the nation’s largest anti-corruption campaign. Alex has been working in money in politics and democracy reform advocacy since 2007. As Policy Director, he works with Represent.Us’ volunteer chapters and network of legal and policy partners to develop anti-corruption acts tailored to the unique needs of each state and local jurisdiction. He received his JD and MPP from the University of California, Berkeley and his BA from Haverford College. Prior to graduate school, Alex worked for Common Cause.
Tags Anthony Kennedy Ideological leanings of United States Supreme Court justices Mitch McConnell Supreme Court Supreme Court of the United States

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