Battle for Supreme Court's majority could damage justices' authority

An increasing number of Democratic Party leaders, including several presidential candidates, have proposed legislation in the event of a Democratic 2020 victory to increase the number of Supreme Court justices. This proposal deserves serious analysis not only because of its potential impact upon the court but also because there is a real possibility that it would be passed quickly by a Democratic Congress and signed by a Democratic president, with two nominations and confirmations soon to follow.

Can Democrats justify such game-changing legislation? There is no easy answer.

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On the one hand, one party always will have a 5-4 majority, and the vagaries of electoral politics and length of tenures may result in a party maintaining control for many years. Indeed, there has not been a liberal Supreme Court majority for half a century.

On the other hand, the present situation is quite different. Unlike the moderate Republicans or conservative Democrats who cast the swing votes on the Burger and Rehnquist courts, the present majority consists of perhaps the five most conservative justices to serve together since the early New Deal. Many Democrats question the legitimacy of three of these justices. Justice Neil Gorsuch occupies the seat that should be occupied by President Obama’s nominee, Judge Merrick Garland, whom Republicans refused to consider. In addition, Justice Samuel Alito and Chief Justice John Roberts are beneficiaries of the decision by five Republican justices to intervene in the counting of the 2000 Florida election ballots to assure President Bush’s election.  

Are the Democrats clearly wrong to seek redress? If you think so, ask yourself what Republicans would do under identical circumstances.

The critical question, of course, is whether expanding the number of justices is a good idea. The answer depends upon not only one’s ideological perspective but also the extent of one’s concern that such legislation would impair the functioning of the court.

Perhaps the principal merit of the proposal for liberals is that it is the only plausible means of shifting the court to the left in the foreseeable future without amending the Constitution. But the proposal is a drastic one that probably would further politicize the court and provoke future Republican retaliation. The unstable size and composition of an expanded court would significantly undermine respect for precedents and persuade justices to act even more as political representatives of those responsible for their confirmation.

There also is an elephant in the room. Although the enlargement of the court would quickly achieve its objective of moving the court significantly to the left, this success might be quite temporary and could produce a cascade of events that would cast the court into chaos. A future Republican Congress and president never would accept the legitimacy of the confirmation of additional Democratic justices. But since justices are guaranteed lifetime tenure by the Constitution, the Republican response probably would be the further legislative enlargement of the court and the confirmation of additional Republican justices. The cycle could continue, and the court would lose public respect and effectiveness as it grew ever larger.

But is this what actually would happen? Hopefully, even probably, not. Both parties would have a strong incentive to find a bipartisan solution, rather than destroy the court, and there is at least one attractive possibility. This is the proposal for a constitutional amendment limiting the tenure of justices to one 18-year term, with a successor justice appointed every two years. Such an amendment — which would require transition rules and a mechanism to prevent a Senate controlled by a party different than the president’s from frustrating his prerogative to appoint justices every two years — would not only make it less likely that either party maintained long-term control over the court but also assure a regular infusion of fresh blood and a stop to the trend of appointing relatively young justices likely to serve very long terms.

Ironically, the most attractive and bipartisan proposal for reforming the Supreme Court nomination process also is the most difficult to achieve because of the requirement of a constitutional amendment. A Republican Party in control of a very conservative court is unlikely to support such an amendment. It probably would take at least the imminent threat of the passage of legislation enlarging the court, or the unanticipated loss of the Republican Supreme Court majority, for a bipartisan constitutional amendment to obtain sufficient support.

Indeed, the window for such an amendment may be a narrow one; Democrats might be reluctant to support the amendment if they quickly gained a court majority because of the resignation or death of a Republican justice. But the failure to agree upon a neutral constitutional amendment may result in speedy legislative action, which will seriously jeopardize the court.

Jeffrey Glekel served as a law clerk to Supreme Court Justice Byron White and as an assistant U.S. attorney in the Southern District of New York. He is a retired partner of the international law firm of Skadden Arps Slate Meagher & Flom, headquartered in New York.