Supreme Court Reform Is in the Air

This year, two prominent Democrats released two different plans for Supreme Court reform. One came from President Biden and is worth serious thought. The other, which came from Senator Ron Wyden (and a number of other Democratic legislators), would escalate the nation’s judicial wars and perhaps even harm our nation’s constitutional order. Biden is right to propose term limits for Supreme Court justices; Wyden is wrong to propose adding justices to the Supreme Court.

I’m raising this issue in part because fear of court packing is one of Republicans’ most potent arguments to keep conservatives from crossing the aisle and voting for Kamala Harris — and because, in her first run for president, Harris herself indicated that she was “open” to expanding the court. She has since endorsed Biden’s plan for term limits. She was wrong in 2019, and she is right in 2024.

This newsletter is going to focus on court packing and term limits, not other forms of court reform (such as new ethics proposals) because the size and composition of the court is far more important than even the most aggressive ethics reforms in Congress. But before we judge the merits of the competing proposals, it’s important to understand exactly why the court needs reform.

The problem with the current court isn’t with its decisions (even if I disagree with a number of its recent opinions). Rather, it’s with the way the political branches have gamed the system in a manner that complies with the letter of the Constitution but violates its spirit.

The purpose of lifetime tenure is supposed to be to secure judicial independence, not to secure decades of ideological advantage on the court. The purpose of granting the Senate the confirmation power is to offer a thoughtful check on the president’s judgment, not to cripple the president’s appointment powers unless his or her party also controls the Senate.

When you combine a constitutional misjudgment with senatorial shortsightedness and extreme polarization, you land exactly where we are today — with instability and anger that harm the court and threaten the rule of law.

Let’s start with the constitutional misjudgment. When the founders declared in Article III that judges hold their offices “during good behavior” rather than for a set period, they introduced an inescapable element of randomness to the process. Since a president can’t appoint a justice unless there’s a vacancy — and no president can make a justice retire, no matter how hard he or she might try — then presidents (and voters) typically have no idea how many justices they’ll appoint.

President Jimmy Carter didn’t appoint a single justice in his sole term. Donald Trump appointed three. Barack Obama had three vacancies in his eight years, but he was able to confirm only two new justices. Ronald Reagan was able to confirm three new justices and elevate a new chief justice. Democrats have won five of the last nine presidential elections, but Democratic presidents have nominated only three of the nine Supreme Court justices.

This randomness has been a problem since the ratification of the Constitution, but the problem was much more manageable before the modern era. According to the Supreme Court, the average term of a Supreme Court justice has been 16 years. Many modern justices, however, have served well over 25 years.

The presence of the filibuster beginning in the mid-19th century and throughout the 20th century meant that presidents of both parties had to achieve at least some level of bipartisan support to confirm a judge.

No one could claim that the prior system was perfect or always achieved good results. Filibuster abuse could block good nominees. And despite their theoretical independence, justices were too often prisoners of their political times — susceptible to the same racism and xenophobia that plagued the rest of the American body politic.

It’s hard to argue that the court was a healthier institution when it was deciding cases like Dred Scott v. Sandford (which denied citizenship to Black Americans) and Korematsu v. United States (which upheld the internment of Japanese Americans).

At the same time, however, it’s clear that American nomination contests have become more contentious, and many Americans are rightly frustrated that the vagaries of chance and the Senate’s embrace of power politics have left them with little voice in the selection of a branch of government that’s arguably become more potent than any other, which again violates the intent of the founders.

The judicial confirmation wars keep escalating. A dispute over filibuster abuse led Democrats to break the judicial filibuster for lower court nominees. Four years later, Republicans broke the filibuster for the Supreme Court.

The combination of the Republican decision to block an election-year floor vote for Merrick Garland while Barack Obama was president and then confirming Amy Coney Barrett under Trump just days before the 2020 election was both a raw exercise of political power and an ominous warning that the next phase of the judicial wars may well mean that divided governments simply won’t be able to confirm new Supreme Court nominees.

Put all of these circumstances together, and you’ve created a series of perverse incentives. Parties that control both the presidency and the Senate know that they may not be able to confirm new nominees again for a very long time — so they have good reasons to appoint younger and younger judges and justices so that they can stay in office for decades.

At the same time — since there is no longer the need to compromise if you have the presidency and 50 senators — there is an incentive for people who aspire to the judiciary to clearly and aggressively stake out their judicial philosophy. No one wants to nominate a squish, so there is a strong incentive for potential justices to signal to supporters that “you can count on me.”

Whereas previous aspirants to judicial office often played their philosophical cards close to the vest, hoping to be seen as impartial and judicious, a number of ambitious younger lawyers and judges are aggressively declaring their opinions, hoping to be seen as reliable or “tough.”

This aggressive ideological or philosophical signaling is the opposite of judicial independence. It doesn’t declare, “I’m my own person.” Instead, it declares to political partisans, “I’m one of you.”

Think of what that dynamic does to lower court judges. Writing nuanced, thoughtful opinions in hot-button culture war cases is a good way to kill your chances for higher judicial office. The same dynamic applies for law professors and others who are regularly tapped for the judiciary. Nuance is their enemy. Any daylight between you and your party’s political base is a risk to your career.

As a result, the new political imperative is to nominate and confirm young justices who will do exactly what you want for as long as you want — for terms of office that can stretch longer than the reigns of ancient kings.

Thankfully, we haven’t yet experienced the full consequences of that broken system. The Trump nominees and even the most recently added justice, Justice Ketanji Brown Jackson, all developed their judicial philosophies well before the current political dynamics dominated the legal profession.

Their own independence has meant that they frequently cross ideological and philosophical lines to frustrate Democrats and Republicans alike. As much as I disagree with the conservative majority’s presidential immunity decision, one can hardly argue that they march in lock step with MAGA’s wishes. They’ve frustrated Trump and MAGA time and time again, including by helping block Trump’s efforts to steal the 2020 election.

But what will the judiciary look like after 10 more years of perverse incentives? After 20?

Expanding the court would only make the problem worse. As a practical matter, to expand the court, you have to end the filibuster. When Harry Reid and Mitch McConnell ended the filibuster for judicial nominations, they did not end it for judicial legislation. So 60 votes are still necessary to reform the court. End the filibuster and you raise the specter of serial court expansions, with each one designed to defeat the one before.

Wyden wants to gradually increase the size of the court to 15, with two new additions each term until the limit is reached. If Trump wins and has a mere 50 Senate votes, he could also add as many additional seats as he desired, when he desired. Each election you’d be voting not just for court influence but for court control.

What’s worse, when you promise majorities court control, you are promising majorities court outcomes, and majorities do not always want to protect minority rights. Democracy alone isn’t a sufficient safeguard for free speech, equal protection or due process. Criminal defendants, for example, are not a popular constituency, but much of our Bill of Rights is dedicated to protecting their basic rights.

If angry majorities were able to change the composition of the court every time the presidency changed hands, how many of our most precious freedoms would remain intact? Many of our most potent free speech precedents were carved out by tiny minorities or marginalized communities.

Term limits, on the other hand, address the political crisis without harming judicial independence. Biden’s proposed reforms adopt the most common term limits proposal — every justice serves for 18 years (which roughly matches the median court term throughout the nation’s history), which in turn means that every president would select two justices per term, in his or her first and third years in office. This proposal has the virtue of addressing the worst of our current problems while preserving the best of the current system.

A long, fixed term (absent impeachment) would help guarantee judicial independence. The justices would have more than enough time to develop their own jurisprudence and make their marks on the court.

Any new legislation should be enforceable only after the next presidential election so that the current president isn’t gaming the composition of the court, and it should be conducted on the basis of seniority — with the most senior judges being replaced first. They shouldn’t be removed from the court, but they should instead be placed on senior status. Judges on senior status have much more limited dockets and would vote, at most, on only a tiny fraction of cases.

The predictability of two Supreme Court nominations per presidential term removes most of the randomness and chance from the judicial nomination process, and a well-written statute could limit political gamesmanship by requiring floor votes for each nominee. The only randomness would occur in the event of vacancies created by death or unexpected retirements, which would be filled by the president at the time.

The balance of two justices per presidential term retains democratic influence over nominations without establishing majoritarian control of the court. Long-term changes in the court would depend on long-term political success, not on the vagaries of any given election or the whims of any given majority.

I don’t pretend that reforming the court will be politically easy. There’s an open question as to whether Congress can impose term limits in the absence of a constitutional amendment. But the term limits concept, unlike court packing, has long enjoyed bipartisan support.

To be clear, I don’t oppose court expansion because I believe there is anything sacred about the number nine. Our nation has both increased and decreased the size of the court over the course of its history. But at this moment, court expansion is particularly unwise. Combine the necessity of eliminating the filibuster with a hyperpartisan political culture that feeds and almost seems to require constant escalation, and you’re creating the conditions for constant efforts to expand the court.

Also, if Congress and the American people want to correct what they perceive as bad court outcomes, court expansion is unnecessary. Congress can pass laws that effectively reverse court precedents. The powers of Congress are outlined in Article I of the Constitution, and it is not the court’s fault that Congress has been broken for decades.

For example, when the Supreme Court narrowed the scope of the First Amendment’s religious liberty protections in a 1990 case called Employment Division v. Smith, Congress enacted two potent statutes — the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act — that reversed Smith’s worst effects. Readers who are angry at the Dobbs decision don’t have to wait for court changes to protect abortion rights. They can elect legislators who enact pro-choice laws, including laws that override state abortion restrictions.

I’m a hopeless nerd, and when I think of the difference between court expansion and term limits, I’m reminded of a famous exchange in the television show “Game of Thrones.” Daenerys Targaryen, one of the show’s chief protagonists, describes how the powerful houses of nobility are just spokes on a wheel — first one is on top, then the next, “on and on it spins, crushing those on the ground.”

Court expansion in the current environment would keep the wheel of dysfunction spinning, amplifying the constant application of power politics to the one branch of government that’s supposed to be most protected from politics.

Term limits aren’t a panacea, but they are an improvement, and they’re an improvement that’s precisely targeted at the malady of our moment — a political system that’s exploiting the randomness of court openings and the length of lifetime terms to create a class of public servants who hold too much power for far too long.

Some other things I did

My Sunday column was about the dangerous Christian prophets of Trumpism. In September, JD Vance spoke at an event hosted by an influential Christian leader named Lance Wallnau, one of the spiritual architects of Jan. 6. Wallnau is a proponent of a Christian nationalist doctrine called the Seven Mountain Mandate. And what is that?

The core concept of the mandate is simple: It states that Christians will be able to save the nation only if they or their allies gain control of each of the seven “mountains” of cultural influence: the family, religion, education, the media, the arts, business and the government.

In 2013, Wallnau wrote a short book with Bill Johnson, pastor of the powerful Bethel Church, a large Pentecostal congregation in California. In a chapter on the mandate, Wallnau wrote, “These mountains are crowned with high places that modern-day kings occupy as ideological strongholds.” He said that he “sensed” that God was telling him that “he who can take these mountains can take the harvest of nations.”

I recently had the pleasure of speaking to thousands of Brigham Young University students about how loneliness is breaking our culture and how friendship can help heal our wounded hearts. If you want to see the speech (it’s short!) and hear the story of how I was once publicly embarrassed while wearing a Batman costume, you can watch it here.