The public has lost faith in the Supreme Court. Recent polls show that confidence in the Court has ebbed to a historic low, with only 25 percent of respondents telling Gallup they approve of the Court’s performance—down from 40 percent two years ago. Most say the Court is too political, too driven by partisan politics, and too unlike a court of law. When the vote shakes out 6-3 or 5-4 in a policy-freighted case, and a lawncare guy could accurately predict in advance which justices fall on which side of the line, it just doesn’t feel like law anymore. The decisions, stripped of their opaque verbiage, smack of the kind of partisan bloviation you get out of Congress.
Since decisions on hot-button issues such as guns, gays, God, air quality, abortion, and others are sourced in preferred policy choices rather than anything found in the Constitution, it always comes down to whose ox is being gored. But, with a 6-3 conservative supermajority among the justices, it looks like the progressive ox will be gored for decades. The conservatives have the votes, resulting in the law not working for most people.
Representative Adam Schiff has a solution. The Californian who aspires to succeed Dianne Feinstein in the U.S. Senate wants to enlarge the Court. “We have two justices who don’t belong on the Court [Kavanaugh and Barrett] …McConnell and Trump have stacked the Court. It ought to be unstacked, and that’s not going to happen in the next half century if we don’t expand the Court,” Schiff said during a recent podcast interview.
Schiff’s plan is to expand the number of justices (he doesn’t say by how many), impose reasonable term limits (he doesn’t say how he can overcome the constitutional provision for lifetime appointments), and ethics rules (there is no Code of Conduct for the Supreme Court as there is for all other federal judges).
The size of the Court is, of course, not set out in the Constitution. Congress determines the number of justices. Initially, the Court had six justices, which changed after the Judiciary Act of 1789. Over the years, the number bounced from six to five, back to six, to seven and then nine, up to 10, down to seven, and finally back to its present cadre of nine in 1869 under the administration of Ulysses S. Grant.
If it could be accomplished, the Schiff proposal for court enlargement would be payback for Mitch McConnell’s skullduggery in thwarting Merrick Garland’s nomination in the last year of Obama’s term and ramming through Amy Coney Barrett and the end of Trump’s. The flaw, however, is that it tends to undermine the independence of the judiciary and is unlikely to happen. To accomplish enlargement, Schiff would need to get a majority of the House of Representatives to go along and get around a Senate filibuster. Not bloody likely.
Court packing is, of course, nothing new. In a “fireside chat” in March 1937, a frustrated President Franklin D. Roosevelt bewailed that superannuated conservative justices were striking down New Deal legislation necessary to save a depressed economy.
“We have therefore reached the point as a nation,” he said, “where we must take action to save the Constitution from the Court and the Court from itself.”
Roosevelt proposed adding six justices for every justice older than 70 and ½.
FDR’s court-packing bill was dead on arrival in the Senate even though Democrats had a mammoth majority. However, the situation was somewhat ameliorated when one justice, some say intimidated by the threat of court packing, voted to sustain a Roosevelt minimum wage statute, which caused a humorist to quip was the “switch in time that saved nine.”
Then there is the proposal for a code of conduct. All other federal judges are bound by ethics rules, but not the Supreme Court. Oliver Wendell Holmes thought that only a bad person needs a code of conduct; good people will do the right thing out of moral instinct found in the “vaguer sanctions of conscience.” But the behavior of Supreme Court justices can be ethically questionable, and a code of conduct may give guidance. Justice Abe Fortas had to resign because he was on the take. Antonin Scalia went hunting with Dick Cheney when the vice president had matters before the Court. Clarence Thomas refused to recuse himself in three January 6 related cases where his wife, Ginni Thomas, had a significant interest, and so his impartiality could be reasonably questioned. Federal law already provides that the justices must recuse in cases where a spouse has “an interest that could be substantially affected by the outcome.” Harvard Law School’s Laurence Tribe says that, in refusing to recuse, Thomas was “thumbing his nose at the law.” But, there is nothing anyone can do about a justice who cuts corners.
Committing justices to a code of conduct isn’t a guarantee of ethical performance but it wouldn’t hurt, either.
Term limits are another matter, and therein lies the potential for restoration of some ideological balance on the court and wise public policy. The Constitution provides that all federal judges “shall hold their Offices during good Behavior,” which has been universally interpreted to mean for life. Other leading democracies, however, have mandatory retirement ages for their Supreme Court justices. The time to step down in Israel is 70, and the United Kingdom recently upped it from 70 to 75.
Term limits are a good thing, and it wouldn’t smell like payback, even if there were a whiff of that. They would tend to distribute appointments among Presidents, so we don’t end up with a situation where a one-termer like Jimmy Carter gets none, George H.W. Bush gets two, and Donald Trump gets three. From 1789 to 1970, the average justice served for close to 16 years and retired at about age 67. Since 1970, the average tenure has risen to 25.5 years, and the average age on leaving office has risen to about 79. That’s not to say they’ve become doddering, but that new blood circulation would be welcome rejuvenation.
In 1789, judges were given lifetime tenure, but males (there were only males on the Court in those days) were expected to live less than 60 years, falling short of the Biblical three score and 10. Today, men and women are in the pool, and Americans, including justices, are living longer, healthier lives and are retiring and dying later.
A few lions in winter retired north of age 70, such as Holmes at 90 and Louis Brandeis at 84. More recently, many justices also retired at advanced ages, such as Sandra Day O’Connor, at 75; John Paul Stevens, 90; Anthony Kennedy, 82; and Stephen Breyer, 83. A federal judge retires at full salary, so Breyer could leave the Court consistent with what he said was his father’s “number one advice”: “to stay on the payroll.”
Other justices have died while on the bench in recent years: William Rehnquist at 80, Antonin Scalia at 79, and Ruth Bader Ginsburg at 87.
But how does Schiff get around the lifetime appointments provision of the Constitution?
My brilliant law school professor, the late Roger Cramton, a rock-ribbed Republican, had an answer. In 2005, he proposed a Supreme Court Renewal Act in which justices would retain lifetime appointments but rotate off the court after 18 years. Instead of retiring, justices would have the right to serve as senior judges on the lower appellate courts. This, argued Cramton, would pass constitutional muster.
Cramton was well credentialed. He was a Supreme Court Clerk to Justice Harold Burton, who, although a Republican, was a Senate crony of Harry Truman, who nominated him for the Court. Richard Nixon appointed Cramton to head the Justice Department Office of Legal Counsel, where he was succeeded in that job by Scalia. The bipartisan Commission on the Practice of Democratic Citizenship, a project of the American Academy of Arts and Sciences, has recommended 18-year terms, as has the Presidential Commission on the Supreme Court.
It makes sense. Changes on the bench have proved to be significant. In 2000, just before she retired, Justice O’Connor cast the deciding vote in Stenberg v. Carhart, holding 5-4 that a Nebraska “partial-birth abortion” statute was unconstitutional. The statute proscribed late-term abortion with no exception for instances where the banned procedure was necessary to preserve the health of the mother. In 2007, just seven years later, after O’Connor retired and was replaced by Samuel Alito, the Court in Gonzales v. Carhart reversed course and upheld 5-4 a federal partial-birth abortion ban having no exception for the health of the mother. Alito cast the deciding vote. The astonishing turnabout caused many lawyers to wonder, if the law changes with the judge, what is law?
Term limits for justices are not a left-right issue. True, many like me, who believe in an evolving Constitution, would be happy to see Clarence Thomas retire. He will be 75 in June and has bragged that he “ain’t evolving.” And Alito, who is 72, should also step down lest he continue for decades to vote against women’s interests every time the issue is presented. But the non-partisan truth is that both have served long enough, and I would say the same thing of liberal judges similarly situated.
The issue of term limits goes further than that. Chief Justice John Roberts has conceded that the Court loses its legitimacy in the eyes of those who perceive it to be more political. And Justice Elena Kagan, speaking at a New York synagogue, flat out declared that courts “undermine their legitimacy when they … stray into places where it looks like they’re an extension of the political process, or where they’re imposing their own personal preferences.”
Franklin Roosevelt viewed the conservative court of the 1930s “not as a judicial body but as a policy-making body”—and the shoe fits more neatly these days than ever before. Term limits for justices are a pretty good idea.