Reform and Revive

It’s been a rocky two years for the U.S. Supreme Court.

For one, in 2016, there was Merrick Garland. Then-President Barack Obama had nominated him to fill the seat of Justice Antonin Scalia, who died in February of that year. Garland, however, never got a Senate hearing: Senate Majority Leader Mitch McConnell, a member of the Republican Party, declared that he wouldn’t accept any appointment by the sitting president. Nearly a year after Scalia’s death, President Donald Trump promptly appointed Neil Gorsuch in Garland’s place.

And then, this year, there was Brett Kavanaugh. After a highly polarizing, drawn-out, and Republican-dominated confirmation process, Kavanaugh—who had been accused of sexual assault by several women, including Dr. Christine Blasey Ford, who testified before the Senate Judiciary Committee—was confirmed to the Supreme Court in October 2018.

Both controversies elicited widespread concern about the precedents these decisions may set and about the future of an institution that was once supposedly apolitical but now has suddenly become mired in partisan squabbles. The truth, of course, is that the Court has always been intimately tied to politics, from FDR’s attempt to pack the Court with six additional justices in 1937 in order to prevent his New Deal legislation from being struck down, to the 1991 appointment of Clarence Thomas, whose hasty confirmation process was riddled with sexual harassment allegations and has been frequently evoked in discussions of Kavanaugh.

With many observers—particularly Democrats—now arguing that the integrity of the Court has been irrevocably damaged, is it possible to restore public faith in one of the nation’s foundational institutions?

As it turns out, it just might be. There are several ways the Court might meaningfully be transformed in this regard, from limiting its constitutional power to court-packing to implementing a lottery system for selecting justices. At a recent event, the American Constitution Society (ACS) and New America’s Political Reform Program brought together a panel of experts to discuss proposals to reform the Supreme Court.

“I’m not opposed to talking about [the reforms], publicly and loudly. Because the Court is listening.”

There are two fundamentally different ways to envision Court reform: changing the makeup of the Court’s personnel, or limiting the powers of the Court itself. According to University of Chicago Law School Professor Aziz Huq, the best strategy for advancing a progressive agenda is to focus on taking away the Court’s powers.

“Constitutional courts are, predictably, methods of entrenching powerful elites that existed before a constitution was ratified,” Huq explained. “To say that the Supreme Court is somehow necessary for the maintenance of our democracy, to say that it’s necessary to defend the individual rights of citizens or non-citizens in an era in which most of the Court’s jurisprudence has been making it easier to take those rights away, I think is just false.”

But Vanderbilt Law School Professor Ganesh Sitaraman, an avid supporter of the personnel approach, disagrees.

“One problem with the power approach is, it doesn’t solve the problem of what happens when the shoe’s on the other foot,” Sitaraman said. “The next administration and the next Congress can give [the Court] back its jurisdiction.” Instead, Sitaraman argued, reform ought to focus on altering the ways we select Supreme Court justices, which could stem the politicization of the process. Some alternatives include appointing all federal judges as associate justices to the Supreme Court and running a lottery to select nine among them every year to preside over cases, or naming 15 liberal and 15 conservative justices who will collectively select 15 more justices from a pool of federal judges.

Of course, there are less radical ways to reform the Court—ways that wouldn’t require massive levels of bipartisan support to achieve.

For instance, New York University School of Law Professor Robert Bauer suggested that, rather than always looking to graduates of elite law schools—like Harvard and Yale—a wider pool of judges should be considered when justices are nominated. Interestingly, to date, many justices in American history have served in the executive branch prior to their appointment, which Bauer argued creates an inadvertent bias in favor of a strong executive in the Court. Another area to consider is the recusal procedure. American University Washington College of Law Professor Amanda Frost emphasized that the current process for Supreme Court justices to recuse themselves from a case lacks transparency and accountability.

Reflecting on the Kavanaugh nomination process, Bauer also suggested that the Court implement a process for logging any complaints and tips that the Senate might receive during a confirmation hearing—such as the one Dr. Ford submitted once Kavanaugh had been shortlisted. “There [also] needs to be an understanding of when a special counsel would be appointed, particularly on contested issues of qualification,” Bauer explained.

Any potential reforms to the Supreme Court would be challenging to implement and enforce. For instance, limiting the constitutional power of the Court in any way would require an amendment to the Constitution and a two-thirds majority in both the House and the Senate.

And yet, the very act of having open and public discussions can be beneficial to both the Court and our democracy, Frost believes. “I’m not opposed to talking about [the reforms], publicly and loudly,” she explained. “Because the Court is listening.”