By Eric Segall
The Supreme Court of the United States plays much too large a role in our nation's politics. The validity of varying state and federal laws on abortion, gun control, campaign finance reform, affirmative action, and numerous other social, political, educational, and economic issues should not be determined by a majority of unelected judges sitting in the nation's Capitol. This institution we call a Court (which isn't one) is unique in all the world and is emphatically not the court the framers thought they were creating. The most important piece of Founding-era history on the nature of the Court was written by Alexander Hamilton who in Federalist 78 said, among other things, the following:
The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority... It therefore belongs to them to ascertain [the Constitution's] meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
In No. 78, Hamilton gave examples of laws that judges would have to invalidate. He said that the "complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like." (emphasis added). Hamilton had no experience with and would clearly not have condoned the broad-reaching common law powers the Court has exercised to constitutionalize so many subjects of importance to the American people that cannot be traced back to clear text or uncontested history. The phrase "irreconcilable variance" does not come close to describing how the Court has exercised its power of judicial review.
Court reform is now in the air because the GOP has played the appointments game much better than the Democrats, because the Court is now to the right of the American people on many issues, and because our country is finally realizing that an institution composed of unelected, life-tenured governmental officials with essentially unreviewable power, a "court" like none other in the world, is simply not a good idea.
But reform is not likely to happen as Mike pointed out last week. The 36-member Biden commission to study the problem is too large, made up mostly of elite law professors with a vested stake in keeping the Court too strong, and its charge, as Mike said, is fuzzy at best. There will be a lot of testimony and questions but not much action.
Last Wednesday, several members of Congress announced they supported a plan to enlarge the Court to 13 seats, and presumably pack those seats with justices sympathetic to the Democratic party. That idea won't go anywhere and, in any event, is completely wrongheaded and ill-motivated. Any reform that makes the Court stronger or more partisan is, to put it simply, bad. The Court needs to be weaker.
Numerous academics have suggested a variety of proposals to reform the Court--such as ending life tenure, jurisdiction stripping, and remaking the way the Court is staffed. I support these proposals but they do not get to the heart of problem (though they would help a little).
There is a better way, as I suggested in 2016 after Justice Antonin Scalia passed away. At the time, the Court was staffed by four Republicans and four Democrats, and the most liberal Republican (Anthony Kennedy) was far more conservative than the most conservative Democrat (Justice Breyer). I argued in numerous op-eds, essays, blog posts, and a law review article for a Pepperdine Symposium that Congress should pass a law freezing the Court at eight Justices (the original number was six), and pass Senate rules, like they have had for the filibuster for legislation (for over a century), that there would always be an even number of Republicans and Democrats on the Court. The President of course can nominate whomever he wants, but as we have painfully learned, the Senate does not have to give such a person a hearing.
Before reading the rest of this blog post, please remember that you are comparing my idea, not to a perfect system, but to the status quo or other Court reform proposals. Also, please notice that, in the long run, my proposal benefits neither political party and makes the Congress stronger and the Supreme Court weaker. I mention the last point to emphasize that the major problem with the Supreme Court is not that over time it is too partisan (though it is) but that it is too powerful.
I argued that the benefits of a permanent Court-balancing plan were the following:
[S]uch a Court will have to work hard to reach consensus and will inevitably issue narrower decisions in some hard cases. This need to get along and reach across our current ideological divides would provide both substantive and symbolic benefits. In addition, if the Court is evenly divided, it will be much harder for five (or more) Justices to impose their ideological agendas on all fifty states and the American people as arguably happened between 1900 and 1936 with the Lochner Court and for a decade or so with the Warren Court.
To the extent there are some cases where the Justices will end up in four-to-four ties, the issues will be resolved in the Courts of Appeals, which are often made up of impressive judges who are far more diverse, educationally, geographically, professionally, and politically than our current Justices. Finally, the requirement that in highly charged cases (the ones most likely to divide the Court) a litigant must persuade a Justice of one political stripe to switch sides or at least make nice with a Justice on the other side has numerous upsides including demonstrating that law can at times trump politics and that, if a small group of lawyers sitting in the nation's capitol is going to impose a controversial and divisive national rule on the rest of the country, there is always going to be at least a little compromise and bi-partisan consensus before they impose the rule.
In my Pepperdine article, I suggested a detailed plan to accomplish this proposal, including a way for independents to be considered. I also explained why the fear of a lack of uniformity in federal law should an evenly-divided Court tie was vastly overstated. On the last point, in a different essay, I said the following:
The Supreme Court decides only about 75 cases a year, amounting to fewer than 1 percent of all federal cases. We don’t worry about uniformity in the 99 percent of cases the court never hears. In addition, of the cases the court does hear, only about 20 percent are decided by 5-4 votes. Most of those, while important, do not raise uniformity issues. Moreover, if a national rule is urgently needed for economic or other reasons, the justices will in all likelihood recognize that need and act accordingly, especially if an evenly divided court were to be a permanent aspect of our legal system.
At the time, the most persuasive argument against my proposal, is still the most persuasive argument against my proposal--that it will never happen. In response, I suggested that if only cooler heads would prevail, people would see this proposal does not benefit either political party, clearly weakens and improves the Court, depoliticizes to a great degree our broken nomination process, and could be easily explained to the American people (as opposed to most other academic proposals being offered to reform the Court).
Today, of course, the GOP would object on partisan grounds since they clearly own the Court (and thus the law). What the Democrats need to do, in a hurry, is convince their few conservative Senators to abolish (or "suspend") the filibuster for the sole issue of Supreme Court reform (although it would be better to enact voting rights legislation too), add three, not four seats, and create a 12-person court, with the promise that they are doing so only as the opening act for balancing the Court. The way to express this to the American people would be that we are all tired of the Court zig-zagging through American history with cycles of partisan liberalism and conservatism, and for the rest of time no state or federal law will be invalidated by the Supreme Court without at least one Republican or one Democrat voting with the other side.
So what happened during the 2016-17 Supreme Court term when the Court was evenly divided? Professor Will Baude wrote that this “has been a quiet term and that is good for the country. Overall this year the Court has been the least dramatic and most functional branch of government.” Justice Alito noted that we "had a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.” And, as the New York Times reporter for the Supreme Court Adam Liptak noted, "the last term was marked by a level of agreement unseen at the court in more than 70 years. That resulted from a lack of divisive disputes on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks." More hard work, less divisiveness, and narrower opinions are exactly what should be the goals of Supreme Court reform.
Finally, on a personal note, I was invited to present this thesis at a University of Chicago forum back in 2017. I vetted my idea with Liptak, whose judgment I trust, and who had previously been at the forum. He didn't object to an even number of Justices but said the partisan balance idea was "nuts," and I should be prepared for a rough time at the forum. Judge Frank Easterbrook was there and indeed stared at me the whole time like I was a three-headed monster. Now jump ahead to present day. On my Supreme Myths podcast with Liptak in February, he told me that he now agreed that my idea of an equally divided Court was worth pursuing.
It is an idea whose time has come.
Postscript by Mike Dorf: I believe that Prof Segall's proposal would be a vast improvement over the status quo. If it had a chance of being enacted by Congress, I'd gladly support it now. I'm not quite prepared (yet) to say that that conclusion retroactively vindicates the proposal circa 2016, but it is no less worthy of discussion than the other (likely futile) proposals currently in the news.