Following the appointment of Brett Kavanaugh, the Supreme Court looks poised not only to push a radical right agenda for a generation, but to further entrench Republican minority rule by approving the anti-democratic forces of voter suppression, gerrymandering, and unlimited money in politics. Democrats have a huge incentive, and arguably an obligation, to fight that outcome. But that fight could lead Republicans to escalate even more, further undermining democratic norms.
The court at the moment is worryingly divorced from democratic will. Republicans have won one popular vote for the presidency since 1988. Yet the court has had a conservative majority that entire time. To preserve that majority, Senate Republican leader Mitch McConnell was willing to block Barack Obama’s nominee, Merrick Garland, for more than a year.
Just as important as McConnell’s violation of norms was Justice Anthony Kennedy’s carefully planned retirement, which created the vacancy ultimately filled by Kavanaugh. If conservative justices only step down from the bench under conservative presidents, and if a Republican Senate refuses to ever confirm Democratic appointees, the possibility of ever overturning the conservative majority dwindles to nothing.
Republicans, in short, have increasingly treated the court as their rightful partisan spoils. It’s little wonder that Democrats have begun to talk about changing the rules when they hold the presidency and the Congress. Many commentators have called for term limits on justices—a reform that would require a constitutional amendment. There has also been increasing pressure from the left to pack the court by adding a number of liberal justices, as FDR famously threatened to do in 1937. That wouldn’t require an amendment, because the Constitution leaves the size and structure of the court up to Congress—but if Democrats could do it, so could Republicans when they got back into power. That’s a formula for making arguments around the court more volatile, not less.
There is an alternative to escalating constitutional brinkmanship, though. To make the Supreme Court more accountable, and more reflective of the popular will, the key is to change institutional incentives so that the court has a more natural cycle of replacement and renewal, and partisans on both sides feel like they can have a chance to influence it through normal electoral methods rather than procedural gimmicks. One promising way to achieve that would be for Congress to implement a system of one new justice per term.
A one judge per term system would be very straightforward: each new president would be allowed to appoint exactly one justice immediately after being elected. They would no longer appoint judges when a sitting justice retires or dies. Thus, the size of the court could fluctuate somewhat over time. None of this would require a Constitutional Amendment; justices would still serve for life, as mandated in Article III.
This plan would mean that voters would have regular input into the partisan make up of the court every four years. Partisans would know they’d have a chance to influence the court every presidential election; it would be regular and predictable, not subject to the vicissitudes of when justices die or choose to retire. This would reduce the need for partisan games. Justices would have less incentive to time their retirements, since they could not choose their own replacements, as Kennedy did. And Congress would have much less reason to treat each Supreme Court appointment as a final, must-win battle.
No system is perfect; there would be downsides to one judge per term as well. There have been thirteen justices appointed over the last twelve presidential terms, so the rate of replacement shouldn’t change that much. But it’s likely that there would be periods where the court had an even number of justices, and the potential for split decisions. Split decisions uphold lower court rulings, without setting national precedents—so different federal circuits could end up following different interpretations of law.
This isn’t ideal, but it has happened before, and hasn’t posed a serious threat to our democracy. Perhaps it would even encourage justices to work harder to find a mutually agreeable compromise in some cases.
Perhaps the biggest weakness of the proposal is that it doesn’t force Congress to confirm the president’s nominee. In theory, after a Democratic victory, Mitch McConnell or a future version could refuse to hold hearings for four years until the next presidential election. The legislation implementing the new system could address the problem by providing that after, say, six months without a vote, the nominee is automatically confirmed. But that would be legally dubious because it would amount to Congress signing away the Senate’s constitutional power of “advice and consent.” The best hope is that, by lowering the stakes of each appointment, the one justice per term system lowers the political will for such extreme brinksmanship.
How would the system work in practice given current realities? If the Democrats win the presidency and Congress in 2020, it seems likely that Stephen Breyer and Ruth Bader Ginsburg would retire and be replaced, leaving a 5-4 court composed mostly of justices likely to serve for decades. Congress could then pass a One Justice Per Term law to go into effect following the 2024 election. If Democrats won that election, they could place another justice on the court, bringing it to a 5-5 tie. If Republicans won, they could place another judge on, moving the court to a 6-4 conservative majority.
This would mean that there would be little incentive for Republicans to repeal the legislation immediately. If they lost in 2024, they wouldn’t have the presidency, and thus couldn’t repeal it even if they wanted. If they won, why would they want to change anything? They would likely have a conservative majority locked in for at least eight years. That would be a bad outcome for Democrats, clearly—but would still be vastly better than the status quo, which most likely entails more than twenty years of conservative control.
The point here is not to craft perfect legislation. Rather, the point is that we have options other than miraculously finding the votes for a constitutional amendment, or simply blowing the system up. Republicans have conducted a bad-faith campaign to undermine the court, leaving it undemocratic and hyper-partisan. But Democrats should resist responding in kind. As with so many institutions, the answer to Republicans’ anti-democratic assault on the court is to make it more democratic.