ChrisWeigant.com

Reform Moves To Center Stage For Democrats (Part 2)

[ Posted Thursday, September 24th, 2020 – 17:11 UTC ]

Yesterday, I took a look at several Democratic reform efforts directed at both the legislative and executive branches. In the second part of examining how potent the issue of reforming government has become, we're going to focus on the Supreme Court, which is now at the center of the political world due to the untimely death of Justice Ruth Bader Ginsburg.

 

Legislative Change Versus Constitutional Change

Before we get to specifics, it is necessary to examine Supreme Court reform more generally. Because there's a limit to what legislation can do. At some point, Congress passing a new court reform law is not going to be enough, and a constitutional amendment will be required.

Where that line gets drawn is the real question. The Constitution itself isn't much help, either. Article III of the U.S. Constitution is incredibly vague and nowhere near as detailed as the first two articles (which discuss Congress and the presidency). There are only three sections in Article III, and the third one veers off on the tangent of defining treason. So only two sections deal with the court system at all. Here's the entire text of the first:

The 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 judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

You'll notice that this doesn't even explicitly guarantee lifetime appointments, although that's always the way it has been read. But what exactly does that first sentence allow Congress to do? Does the comma mean that Congress only has the power to "ordain and establish" all the lesser courts? Does "ordain and establish" mean "regulate legislatively"? Or not?

Section 2 isn't much help, either. After a paragraph listing all the different ways lawsuits could be brought ("...between citizens of the same state claiming lands under grants of different states," etc.), there are only two other paragraphs in the section, both of which mention Congress:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Does the first paragraph split cases the Supreme Court takes into two classes, one of which Congress can regulate and one which it cannot? The second is pretty specific, but limited only to the location where certain trials should take place.

This leaves a whole lot of unanswered questions, obviously. And, other than another section dealing with treason, that is all the Constitution says about the Supreme Court. That's it. Also -- crucially -- ever since the power grab of Marbury v. Madison, the Supreme Court itself determines what is constitutionally-acceptable and what is not.

What this means on a practical level is that any laws Congress attempts to pass to regulate the Supreme Court will almost certainly be reviewed by the Supreme Court. The Supreme Court is supposed to be a "co-equal" branch of government, so it could very easily decide that it gets to make its own rules and regulations, and neither Congress nor the president have any say whatsoever what those rules should be.

The only thing everyone seems to agree on now is that the actual number of Supreme Court justices is something that the president and Congress get to decide. There are all kinds of precedents for this, so that is not likely to change. But everything else is up in the air.

Of course, there are "checks and balances" built into the system. There is indeed one route to changing the meaning of the Constitution that does not involve the Supreme Court, and that is to amend the Constitution itself. This would happen from Congress and the state governments, without any input from the court itself. And a ratified amendment cannot be challenged in a lawsuit in the way that a law passed by Congress and signed by a president can be. A constitutional amendment cannot, by definition, be unconstitutional -- because it is part of the constitution.

However, getting an amendment ratified is an almost-impossible task. Especially when there is a partisan political motivation behind it. What red state is going to ratify an amendment seen as being designed to advance Democratic goals?

In any case, for the rest of this discussion it is worth keeping in mind that Congress and the president can really pass anything they want, but in the end the Supreme Court will likely get the final word on any of it. And if the court is going to be 6-3 for the foreseeable future, that's going to make things tough for reformers.

 

Pack The Court

This is the scheme that's been getting all the attention, of late. As mentioned, there is nothing in the Constitution that dictates how many Supreme Court justices there are. Any president and Congress can decide to change the number by passing a law.

But how likely is it to happen? Not very. It may be fun to kick around as an idea, but making it happen would be a daunting task. Not impossible, but definitely daunting.

Those pushing for such a change are likely to be disappointed. Proponents of the idea see a quick way forward -- Joe Biden wins the election, the Democrats win back control of the Senate, and Chuck Schumer very early on gets rid of the legislative filibuster. All of that has to happen for any of the rest of this entire article to even be meaningful, I should add, and there's no guarantee now that this is going to be the outcome. But we'll assume for the purposes of discussion that it is: Democrats in full power at both ends of Pennsylvania Avenue, and no more filibuster to worry about.

Even in this rosy scenario, the Democrats are not going to have an overwhelming majority in the Senate (indeed, if they did then they wouldn't even have to get rid of the filibuster). The best-case scenario is probably 53 or 54 Democratic senators. The actuality may be a lot tighter -- 50 or 51 senators. Whatever the actual number turns out to be, though, however many Democrats there are above 49 is the number it would take to derail any Supreme Court reform. Say Democrats have a 52-seat majority. This means only three of them have to defect to kill any proposal.

Court-packing is not wildly popular among Democratic senators, even now. This might change, of course, but currently the Democrats likely would not have enough votes to pass any court-packing bill even if they did wind up with 54 seats. There are too many Democratic senators who would shy away from taking such a drastic step.

There is also the lesson of history. Franklin Delano Roosevelt faced the same situation that Joe Biden might face -- a Congress in Democratic hands, but a Supreme Court far to the right of where the public actually was. F.D.R. tried to overcome a slew of court decisions against his New Deal by threatening to pack the court -- raise the number from 9 to 15 justices, thereby guaranteeing a liberal majority.

The Democratic Senate balked, however. No bill was ever passed. F.D.R. won in the end, but only by outlasting the justices who were against him. F.D.R. served so long as president that he eventually got to replace most of the court with his own nominees.

This time around, the situation may be reversed. If the Senate does eventually pass a bill expanding the court, it may be Joe Biden himself who balks. Biden is not in favor of the idea, although he might be convinced by subsequent events.

This is the real wild card in the court-packing idea. If the Supreme Court is 6-3, then nothing liberals have fought for and achieved over the past 40 or 50 years is safe -- up to and including Roe v. Wade. The court has already announced many of the cases they'll be hearing this term, but with the addition of another conservative, their schedule may soon radically change. They may cherry-pick cases on issues they want to see ideologically changed, so it's really anyone's guess how long it will be before the new court issues a monumentally-important ruling that is far out of touch with current public opinion. Roe v. Wade is only one possibility -- there are plenty of others.

When such an unpopular ruling does happen (and, at this point, it seems virtually guaranteed that it eventually will), this may drastically change the political landscape. Court-packing may not sound like such a radical idea if the current court decides that women no longer have the right to choose an abortion. What the timetable will be on this is anyone's guess, really, but it could influence the thinking of both Joe Biden and all the Democratic senators.

I've written on the choice of how radically to pack the court earlier this week, so let me just repeat my eventual conclusion: even if the Democrats do decide to take this drastic step, I think adding only two justices would be the way to go, not the four that some are pushing for. This would leave the court in the same precarious ideological balance that it was before any of this started (back in 2016, or even earlier this year). The court would go from a balance of 4-1-4 to a balance of 5-1-5, so neither side would have a clear and consistent majority. That would likely be seen as fair by the general public, whereas adding four justices (ending up with a 7-1-5 liberal dominance) would likely be seen as a step too far.

 

Draw A Line On Election-Year Confirmations

There are plenty of other ideas for reforming the Supreme Court out there, but this seems to be the most relevant right now. Since the Republicans have been such flaming hypocrites on the issue (going from: "the people must have their say -- nine months from now!" to: "we may just confirm a new justice two days before the election happens"), perhaps it is time to agree to draw a solid line on the calendar.

Getting both sides to agree on where to draw that line might be tough, but I would personally draw it just after the Supreme Court's yearly term ends. Some time in early or mid-July, say. This is usually the time when Supreme Court justices announce their retirement, so this would work with the way things already normally happen. If a vacancy opens up before the dividing line (whether by resignation or death), then the sitting president and Senate would move forward with a new nominee. But if the vacancy happened after this point, the next president and the next Senate would be the ones to deal with it.

Obviously, many people have differing opinions about where such a line should be drawn, but the need for such a line is pretty obvious, at this point. It's important to note that all of this would take place next year, so the current situation will already have resolved itself (no new law would impact what happens between now and January, to put it a different way). But heading into the future, I would be willing to bet that both sides can come to some sort of agreement on the necessity for drawing such a line.

This bipartisanship might be necessary, since the procedure for a president naming a Supreme Court nominee is outlined within the text of the Constitution. Which means it may well require a constitutional amendment to change. But if Joe Biden is president, Republicans may actually be open to drawing such a line.

 

Term Limits

Another idea for court reform is to end the lifetime tenure of Supreme Court justices. This isn't as drastic as it might first sound, because justices wouldn't be fired when their time is up, instead they would be moved back to a federal appellate court where they could continue to serve as long as they lived. It also has the prospect of being possible through legislation rather than a constitutional amendment.

There is nothing in Article III that says that Supreme Court Justices serve forever. So Congress could change this by delineating a specific term for the justices. Say Congress decided that nine years was the right term. Any justice named to the court would serve for nine years, and then move to an appellate court. This would be staggered so that all presidents got to nominate a new justice once every year. If there was a vacancy caused by death, then the justice named to fill the vacancy would only serve out the rest of the term for that seat (in the same way vacancies are filled in the Senate).

This would rotate the court constantly. Each justice would have a limited time to influence the court, and new ones would be added on a consistent basis. This is also merely one example as to how this could work -- there are other ways to do it. Perhaps an eighteen-year term would be better, with terms ending every two years instead of every one. This would avoid any president being able to name more than four justices (plus filling any vacancies from deaths), whereas getting a new one every year would mean a two-term president winding up with a court with eight justices he or she picked. There are other ways the calendar could be arranged. As long as the rotation schedule is in some way divisible by three, it could be made to work for the current nine-justice setup.

This would likely also end the practice of trying to find justices who are as young as possible. With the lifetime tenure, presidents have increasingly tried to pick justices who will be on the court for the next three or four decades. This would not be a consideration with term limits in place, which might lead to older and more accomplished jurists being named to the court. Would that be such a bad thing, really?

 

Redefining The Court

There are other ways the court could be changed through legislation. Too many to list here, although we'll probably hear a lot of them over the next six months or so. One that caught my eye was to totally redefine what the Supreme Court actually is.

Congress could pass a law stating that the entire federal appellate system is the Supreme Court. Any case that came before the court would be assigned nine justices at random, chosen from the appellate court ranks. This is the way appeals courts already operate, when they name a three-judge panel to hear an appeal.

This would mean there simply would be no permanent nine members of the Supreme Court. The membership would shift for each and every case, through the luck of the draw. This could prove to be complicated, of course, such as the question of which cases were even heard by the Supreme Court (who would decide whether to take up a case or not?). But it would have the benefit of completely and utterly removing all the drama from the Supreme Court's makeup forever.

 

Conclusions

Tinkering with the Supreme Court is a monumental thing to do. That much, at least, everyone should be able to agree upon. It is no light matter.

But it may come to pass, especially if the Supreme Court is viewed by a majority of the public as being so partisan and political that their decisions were illegitimate. This is the fear that John Roberts already has, and this problem is only going to increase with the new justice being named.

The Supreme Court famously has no way of policing its decisions. The court has nobody to compel any action as a result of one of their decisions. If the executive and legislative branches agree to ignore one of their rulings, then the court is really powerless to enforce it. Donald Trump is already defying Supreme Court orders, although so far this has happened under most people's radar (confined to certain departments like the Department of Education). But what happens if a major ruling is ignored by the political branches of government? That could be one possible outcome if the court itself is seen as less-than-legitimate.

The outcome of any Supreme Court reform efforts is likely going to hinge on how radical the new court chooses to be. If they confine themselves to rulings with limited application (if, for instance, they decide that the individual mandate is unconstitutional but that the rest of Obamacare is still valid law), then they may avoid a political backlash in the form of a reform movement. But if they overreach (overturning Roe v. Wade, for example), then this backlash may become inevitable.

It likely won't happen as fast as some on the left are now hoping for, though. Some major reforms may take place very quickly next year (the abolition of the filibuster, perhaps), but Supreme Court reforms are likely to take longer. Unless things change in a big way, the Democrats probably won't even have the votes to add more justices to the Supreme Court. Joe Biden doesn't seem very interested in doing so either. So even if it does eventually happen, it is not likely to be on the top of the Democratic agenda even if they do take control of the White House and the Senate.

But all that could change with one truly egregious ruling from the new court. Voters may start demanding such changes in a big way, and Democratic politicians may be forced into acting. Reforming the court is growing in importance with the death of Ruth Bader Ginsburg, but the cries for doing so have not reached maximum volume quite yet. So my guess is that at least some of the reforms discussed yesterday will quite likely happen long before any Supreme Court reform does.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

19 Comments on “Reform Moves To Center Stage For Democrats (Part 2)”

  1. [1] 
    John From Censornati wrote:

    I suppose it's a good thing that so many are making a big deal of the fact that the orange one won't agree to a "peaceful transition of power" if he were to lose. On the other hand, there's no news there. Four years ago, he said he'd accept the results of the election if he won.

    If he were to lose all 50 states, he would not concede. That is not who he is. Everybody needs to accept that reality. He's a mental case with a very fragile ego.

  2. [2] 
    John From Censornati wrote:

    My cell phone has told me to go home three times already this evening. There's a curfew.

    I went out on my porch and, from the looks of the swarming choppers, the curfew has not been heeded. On the other hand, the city of Louisville has not descended into chaos. It was very quiet downtown today.

  3. [3] 
    goode trickle wrote:

    Great write up...

    I lean towards the term limit reform with staggered time lines and justices not being allowed a term longer than 18 years. It would provide stability with more moderate swings in temperament from conservative to liberal and more than likely result in more moderate picks from either side.

    Were term limits to be imposed I would also go for what I would call "court packing light" and add as you suggest two justices for one term then the court would revert to 9 justices.

    I would also make it explicit that you only get one term, in other words no going down to the appellate and getting nominated again down the road.

    I gave thought to the whole appellate rotating justices system and might think it workable if perhaps it was for an entire session vs a case by case basis. We have to remember all of the emergency motions that also need to be dealt with, if 9 random judges were selected for the entire session stability in the function of the court system would be maintained as they could deal with the motions in normal course. Of course this means we would have to extend the service time to cover the in-between sessions time, perhaps the answer is to empanel the justices directly in the middle of session breaks. Doing that would allow the outgoing to get the incoming up to speed on pending carry over issues.

    Ultimately, I decided the system unworkable unless a rating mandate is imposed to ensure neither side is allowed to nominate and confirm judges rated unqualified as the ABA puts it. Unfortunately both sides have nominated and confirmed too many judges rated unqualified that are still on the bench. Do we really want to chance a rated unqualified judge (let alone more than one )sitting in the position to render "supreme" judgement on laws that impact everyone?

    My two cents on the matter, as you say the devil is in the details.

  4. [4] 
    MtnCaddy wrote:

    Okay,JFC, you stay out of the line of fire.

  5. [5] 
    Elizabeth Miller wrote:

    Heh.

  6. [6] 
    Elizabeth Miller wrote:

    It's a shame that a president like Trump can cause so much, well, chaos is a good enough term, with respect to institutions like the Supreme Court.

    I am no fan of term limits in a democracy.

    What I would go for is drawing a clear line in the sand as to when nominations would be forbidden in an election year.

    But, if consensus could be found and Democrats and Republicans agree on who should be nominated in an election year, then that could be done at any point in an election year.

    Also, the two-thirds vote threshold for a SCOTUS nominee should be restored. The Court will be better for it.

    How about no SCOTUS nominations after the official nomination of a presidential candidate at the Democratic or Republican convention, whichever comes first?

  7. [7] 
    nypoet22 wrote:

    doing away with lifetime appointments could cause more problems than it solves.

  8. [8] 
    Elizabeth Miller wrote:

    Agreed.

  9. [9] 
    Don Harris wrote:

    So it would appear that there is no constitutional requirement for lifetime appointments.

    And it would be the Supreme Court that would decide if it was constitutional pass a law that installs the Justices on a term instead. It doesn't have to be a single term, they could be reappointed at the end of the term, just like Congress.

    So let's make it a question asked of Potential justices during confirmation on how they would decide whether the justices have constitutionally protected lifetime appointments.

    And make it question that senatorial and presidential candidates have to answer when running for office on whether they would appoint or confirm a justice that would say the constitution does mean lifetime terms and along with congressional candidates whether they support a law imposing terms on the justices.

    If such a law was passed and made it to the Supreme Court would the justices have to all recuse themselves as ruling on the case that affects them directly could be considered a conflict of interest?

  10. [10] 
    Alin wrote:

    I don't see the cut-off suggestion getting traction. After all, it's next "victim" would be Biden (if he gets elected) and if we'd been suffering under 6-3 for three years then preventing an opportunity to change that wouldn't be seen as a benefit IMHO. What happens eight years for now - that's too far away to seem relevant.Alin

  11. [11] 
    Alin wrote:

    A little OT, but does anyone here know whether, assuming Biden wins, the new Biden admin could drop the ACA lawsuit currently before the SC? If so, this could make a pretty good campaign slogan: If elected I will immediately halt Trump's disastrous attempt to end healthcare for millions - etc.If it can't be stopped they'll need a legislative plan, but either way they should be talking about this more. Trump's framing this that he's saving healthcare and Dems don't seem to be pushing the counter narrative (aka, reality)Alin

  12. [12] 
    John M from Ct. wrote:

    An excellent commentary on the practical problems of reforming the Supreme Court. Thanks, Chris.

    Good additional work by goode trickle in [3], as well. Thanks.

    I guess I like the 18-years on the high bench, with two new appointments per presidential term, on the off years.

    But if any of this gets moving, I would first have the court enlarged to 11, just to rebalance the loss of Garland and whoever the presumed President Biden would have named in early '21. Otherwise the Republicans get everything they wanted by violating the existing understandings, before the inherent reset of an entirely new procedure.

  13. [13] 
    ListenWhenYouHear wrote:

    CW,

    The Supreme Court is supposed to be a "co-equal" branch of government, so it could very easily decide that it gets to make its own rules and regulations, and neither Congress nor the president have any say whatsoever what those rules should be.

    Isn’t the check and balance for the judiciary found in this sentence in the first section:

    The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,

    Judges get to stay in power as long as they show “good behaviour” in carrying out their duties from the bench. And since they cannot be expected to determine whether their behaviour is “good” or “bad”, that’s how they get “checked and balanced”.

  14. [14] 
    ListenWhenYouHear wrote:

    Alin,

    Biden’s DOJ would most definitely bring an end to the ACA lawsuit!

  15. [15] 
    John M wrote:

    [11] Alin wrote:

    "A little OT, but does anyone here know whether, assuming Biden wins, the new Biden admin could drop the ACA lawsuit currently before the SC?"

    [14] ListenWhenYouHear wrote:
    Alin,

    "Biden’s DOJ would most definitely bring an end to the ACA lawsuit!"

    Guys, it is probably already too late for that. 1) Oral arguments on the case will heard at the Supreme Court right after the election in November. 2) Even if Biden withdrew the Federal government from the case before a decision was rendered in January of 2021, the case would STILL go forward because of the Republican controlled states who brought the lawsuit against Obamacare in the first place. The Federal government is only ONE among MANY participants.

  16. [16] 
    Alin wrote:

    John [15], Listen [14] Thanks for the replies. I read up a bit on this and since the DOJ initially opposed this, then supported it, if a new admin states it'll now oppose it I can't help thinking that'll give the court pause. In normal times they (usually) seem unwilling to jump into issues being resolved in the political arena. Whether the new composition means they feel differently now we'll have to see. I wonder if there are any Governerships that might flip - that could cause some of the states to withdraw. We live in interesting times :-(

  17. [17] 
    Kick wrote:

    Great column, CW.

  18. [18] 
    Kick wrote:

    Alin
    11

    A little OT, but does anyone here know whether, assuming Biden wins, the new Biden admin could drop the ACA lawsuit currently before the SC?

    Yes, they could and most certainly would. Maine and Wisconsin did after the 2018 midterms wherein Democratic governors were elected in those states.

    Texas v. United States is a weak case, IMO, being supported by Texas and 18 states total and being opposed by California and New York and 21 states total in the Supreme Court. The issue: The 2017 Tax Cuts and Jobs Act (TCJA) passed by Republicans set the shared responsibility payment (individual mandate) of the Affordable Care Act (ACA) to "zero dollars" beginning January 1, 2019. The plaintiff states want the entire ACA declared unconstitutional because that 2017 TCJA invalidated one provision of the ACA.

    Easiest way to remedy the situation, in my opinion? Democrats should simply vote to reinstate what Republicans removed... and the issue is moot. If the Republicans can gut the ACA with a vote, then Democrats should "repair" it.

    If so, this could make a pretty good campaign slogan: If elected I will immediately halt Trump's disastrous attempt to end healthcare for millions - etc.

    They've been saying it constantly, and with the death of RBG, they're amplifying it upward.

  19. [19] 
    Kick wrote:

    Just to clarify regarding the ACA, it was declared unconstitutional in the lower courts: Texas v. United States

    The State of California and multiple other states have appealed that ruling to the Supreme Court: California v. Texas

    If Joe Biden were to take office in 2021, he could instruct his Department of Justice to drop the United States' objections to its own law (nuts), but the case is primarily Texas suing the United States, and removing that objection wouldn't end the Texas and other states' case against the United States nor the case on appeal in the SCOTUS where California and other states oppose the ruling of the lower courts.

    Is that clear as mud? Check this out: https://tinyurl.com/y4v5u3wv

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