This summer, members of the public not consumed by the daily drama of presidential tweets and the ins-and-outs of the Mueller investigation, turned their attention to the Supreme Court. With the retirement of Justice Anthony Kennedy, who was often a swing vote, the appointment of Brett Kavanaugh raised the possibility of a solidly conservative Supreme Court for the first time in decades. Although an allegation of sexual assault from his days at Georgetown Prep threatened to derail the Kavanaugh train, Republican senators have largely stayed on board. Most court-watchers still expect him to be confirmed on a largely party-line vote.
Things weren’t always this way. Until relatively recently, Supreme Court Justices were virtually always confirmed by overwhelming bipartisan majorities. Justice Scalia was confirmed 98-0. Justice Kennedy was confirmed 97-0. Even Justice Ruth Bader Ginsburg was confirmed with only three senators voting against her. Before the 1960s, most Justices were confirmed by voice votes, and Supreme Court confirmation hearings—if they occurred at all—received little public attention. The now-routine expectation that every Supreme Court nomination should be decided along partisan lines is really only a product of the last ten years.
On one view, the problem with our Supreme Court nomination process is that it has become hopelessly partisan. In a functional system, qualified nominees within the mainstream of legal thought would be confirmed with wide bipartisan support, as was the case for most of our history. But—even though both parties now generally view judicial nominations through a partisan lens—the two parties do not seem to be playing the same game. Conservative voters (and organizations) care more about the judiciary than their counterparts on the left. In the most recent presidential election, for example, among the one-fifth of the voters who said the Supreme Court was the single most important issue driving their voting decisions, 56 percent voted for Donald Trump. In other words, the portion of the electorate that is most motivated by judicial politics is disproportionately conservative. And it shows, not only in voting patterns but also in party discipline around confirmation votes.
Our current judicial-nomination process is unhealthy for both the judiciary itself and our democracy. It tends to make judges more partisan. While some legal scholars insist that there is no clear line between law and politics, there is a difference in most cases between lawmaking (which, in a democracy, should primarily be the function of elected politicians) and the application of law to particular cases—the domain of the courts. Judges who understand themselves primarily in partisan terms are likely to be poor judges.
The politicization of our judicial-nomination process also distorts our democracy by moving such nominations to the center of our politics, especially in presidential elections. This trend has been exacerbated in recent years by longer tenures of Supreme Court Justices. Because of increasing life spans and younger nominees, the average term of the typical Supreme Court Justice has doubled since 1900; it now stretches over a quarter century. As the tenure of Supreme Court Justices grows longer, so does the length of time between nominations, making the stakes for each nomination that much higher. While judicial nominations (particularly for the Supreme Court) are undoubtedly important, it is worth asking whether it is a healthy thing in a democracy for them to be the most important consideration for a fifth of the electorate. After all, the president—and the federal government as a whole—do many other important things.
There doesn’t seem to be any hope of de-escalating our wars over judicial nominees any time soon, but that doesn’t mean we shouldn’t try. There are a number of possible reforms that would at least make those wars less intense. Two in particular bear mentioning. First, we should consider term limits for Supreme Court Justices. The majority of states impose some kind of mandatory retirement age on high-court judges. The problem with mandatory retirement is that it encourages ever-younger nominees. A better approach would be simply to impose a tenure limit. The average tenure of Justices before the 1960s was approximately sixteen years. A fifteen-year term limit would restore the pattern that prevailed through much of our nation’s history. The only problem with this idea is that it would require a constitutional amendment.
Another dramatic reform—but one that could be accomplished by simple statute—would be to increase the size of the Court. The Constitution does not specify how many Justices there should be, and the number has varied over the Supreme Court’s history. As originally constituted by the Judiciary Act of 1789, the first Supreme Court had six Justices, and over its first century, there were as many as ten and as few as five. The number finally settled at nine with the Judiciary Act of 1869. FDR famously proposed to expand the Court to as many as fifteen Justices, but he was defeated. Internationally, the U.S. Supreme Court is on the smaller size. The median number of judges for high courts around the world is about fifteen. The Indian Supreme Court has more than thirty members. Increasing the U.S. Supreme Court to fifteen members—especially if this increase were paired with tenure limits and the new nominees were spread over a number of years—would mean more frequent nominations, which would in turn lower the stakes of any single nomination.
A larger Supreme Court might also be able to experiment with new ways of hearing cases. Contrast the Supreme Court’s practice of sitting at all times as a full contingent of nine Justices with the lower federal appellate courts. On the U.S. Court of Appeals, the intermediate appellate court in our federal system, three judges drawn from a larger pool of circuit judges hear cases in the first instance. The entire circuit will only hear a case when a majority of its active judges vote to do so.
This means that one panel of the U.S. Court of Appeals for the Second Circuit may look vastly different from another. One might be more conservative, another more liberal. Individual judges on a court of appeals learn to work with different colleagues on different cases. Sometimes a judge will find himself in the ideological majority, sometimes in the minority. Different configurations of the court lead to a wide range of potential outcomes, subject to the power of the court as a whole to intervene and rehear a case “en banc” (i.e., as a full court). This habituation to a diversity of panel compositions from sitting to sitting, and to the possibility of reversal by the full court, yields among Court of Appeals judges a greater tendency toward judicial modesty. It might also work against the formation of rigid voting blocks.
If the U.S. Supreme Court were expanded to fifteen members, it might hear individual cases in panels of five rather than as a full court. Sitting in panels would lead to different configurations of Justices, and that could produce outcomes that were more ideologically varied, less predictable, and perhaps more judicially modest. A larger Supreme Court sitting in panels could hear more than the approximately seventy argued cases it hears now. More cases would provide more guidance to lower courts, which often struggle to fill in the gap between the Court’s infrequent decisions in certain areas of the law. More cases would also allow for a more incremental legal development, reducing the incentive for the Court to issue blockbuster opinions.
I see little hope for returning to the days when the public largely ignored the Supreme Court. And that is probably a good thing. The issues decided by federal courts—same-sex marriage, the death penalty, religious accommodations, abortion—are both important and divisive. They ought to matter to voters. But the outsized role the Court plays in our contemporary politics is unhealthy both for the Court itself and for our democracy. We would do well to lower the temperature over Supreme Court nominations. It’s time to start experimenting with structural changes that would help us do that.
