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A Better Way to Fix the Supreme Court

Pete Buttigieg's plan is constitutionally dubious and would enshrine the very problem it seeks to eradicate. Here's a different solution.

Chip Somodevilla/Getty Images

What should be done about the Supreme Court? Liberals, still seething after the Merrick Garland blockade and Brett Kavanaugh’s confirmation, are bracing for imminent defeats from the Roberts Court on everything from partisan gerrymandering to abortion rights. Conservatives like Mitch McConnell and Leonard Leo, flush with victory in the judicial wars, are dropping the pretense that they ever cared about anything other than the raw acquisition of power.

Faced with at least a generation of conservative justices ruling against them, a growing number of Democrats are rallying around court-packing—that is, to add justices to the court—as a last-ditch solution. Pete Buttigieg, the technocratic and media-savvy mayor of South Bend, Indiana, was among the first presidential candidates to argue for Democrats to take the extraordinary step when they next have the political power to do so. “What we need to do is stop the Supreme Court from sliding toward being viewed as a nakedly political institution,” he said during a CNN town hall in March. “I’m for us contemplating whatever policy options will allow that to be possible.” He reiterated his support for it in an NBC News interview on Monday.

Depoliticizing the Supreme Court sounds like a laudable goal, but it’s a quixotic one. The justices will always play a major role in American governance. They will strike down and uphold legislation passed by duly elected lawmakers. They will weigh in on disputed elections. They will decide matters of national consequences. The question is whether the Supreme Court can still be independent and nonpartisan. Lately, the answer is no, as the Roberts Court has habitually deferred to the Trump administration while structurally tilting American democracy toward conservatives.

I’ve written before on how breaking the court-packing taboo would be a dangerous and short-sighted plan. I argued that it would warp the nation’s constitutional structure by turning the Supreme Court into a third legislative chamber, shaped only by the whims of whoever controls the other two branches simultaneously. But I haven’t tried to sketch out an alternative to either court-packing or permanent conservative rule, at least not until now.

Buttigieg told NBC News that he favors one of the plans outlined by law professors Dan Epps and Ganesh Sitaraman in a forthcoming Yale Law Review article. If implemented, the so-called  Balanced Bench plan would expand the Supreme Court to 15 justices. Ten would be chosen the normal way, but with a twist: Five of those justices would be “affiliated with” the Republican Party, while another five justices would be affiliated with the Democratic Party. The other five justices would be chosen not by the president and the Senate, but by the unanimous agreement of the other ten justices on the court. What’s more, they would only serve nonrenewable one-year terms after being chosen two years in advance (to avoid the selection of justices to weigh in on specific cases). Though the reformed Supreme Court would ostensibly have 15 justices, in practical terms it would have ten full-time justices and the five most powerful interns on the planet. What happens if they can’t figure out who to appoint? In a word, nothing. The court “would lack a quorum and could not hear any cases for that year,” Epps and Sitaraman explained.

The two law professors grounded their reforms in John Rawls’s veil of ignorance thought experiment. They argue that the permanent members would be incentivized to choose moderates instead of extremists. “The partisan justices would pick such colleagues not for public-regarding reasons, but out of self-interest: assuming that those justices want their own views to prevail on the Court, they would have an incentive to veto committed partisans on the other side,” they wrote. “But each side might be willing to compromise (and, really, to gamble) on other judges who seem open-minded and persuadable.”

As others have noted, changing the court in this way through legislation alone would be constitutionally dubious at best because the Constitution requires Senate approval for Supreme Court justices. And far from reducing partisan politics on the court, the proposal would permanently enshrine it by carving out Democratic and Republican seats. What’s more, it assumes a collegiality among the justices that may not always exist. If that collegiality breaks down, the result would be no Supreme Court at all—a strangely precarious sword of Damocles that would always loom over the American judiciary. (What if one side’s justices refused to back any appointees who favored the other side of the abortion debate, for example?) The plan’s supporters may think they’re breaking the wheel, but it seems like they’re only adding more spokes to it.

If Americans are going to consider whether to restructure the nation’s highest court, it shouldn’t be done haphazardly or half-heartedly. The best mechanism for reform would be a constitutional amendment. That process faces more hurdles, to say the least. But it would be less corrosive to the nation’s governance in the long term than letting Congress lob the Supreme Court’s membership back and forth like a frayed tennis ball. To build consensus around a constitutional amendment, the restructuring should also take place along neutral principles that favor neither side.

There’s a rationale for expanding the Supreme Court that’s rooted in history and precedent. For the first nine decades of the court’s history, the number of justices matched the number of federal judicial circuits, ranging from six to ten. At first, the justices would spend most of their time “riding circuit”—hearing appellate cases on horseback in their respective jurisdictions in an age before federal appellate courts existed. As Rhodes College historian Tim Huebner wrote in 2013, clashes over the court during the Civil War and Reconstruction led Congress to detach the number of justices from the number of circuits. Its membership became fixed at nine justices in 1869.

There are now eleven circuits that cover the states, plus the D.C. Circuit for the nation’s capital, which would produce twelve Supreme Court seats. (The Federal Circuit Court of Appeals, which hears cases from specialized non-geographic federal courts, wouldn’t count.) Attaching the seats to the circuits once more would make filling vacancies less partisan, too. When one of the justices leaves the court, their replacement would be chosen by lottery from among the federal judges in their seat’s respective circuit. To avoid the oddities that come from an even-numbered court, a thirteenth seat would be held by the chief justice, who would be nominated by the president and confirmed by the Senate.

Restructuring the Supreme Court by constitutional amendment would allow Americans to fix other problems as well. The amendment could also impose term limits on all thirteen justices, which six in ten Americans currently support. Among those open to term limits are Justice Stephen Breyer, who expressed favor for the idea while distancing himself from the idea of court-packing in general. “I think it would be fine to have long terms, say 18 years or something like that, for a Supreme Court justice,” he remarked in April. “It would make life easier. I wouldn’t have to worry about when I’m going to have to retire or not.”

Life tenure has invaluable benefits, of course. It insulates judges from the whims of the other two branches and reduces the risk of corruption by not forcing them to wonder about future employment. But in my proposed amendment, judicial independence could be maintained by keeping life tenure for federal judges in the lower courts while ending it for the Supreme Court. When a justice’s term elapses, they would automatically return to their old post unless they choose to retire altogether. The chief justice would be automatically entitled to a seat in the circuit of their choice when their term ends if they didn’t already have one.

Other provisions in the amendment would be aimed at preventing gamesmanship by lawmakers who might try to abuse the process. Prospective justices would be chosen from among federal judges who have served for at least ten years. The amendment would also limit the number of new federal judgeships that Congress would be allowed to create within a certain timeframe. Both provisions would deter either side from trying to flood the benches with novices to tilt the odds in their favor.

This amendment wouldn’t solve every problem, of course. But it would help diffuse the cycle of retaliation and escalation that’s built up over the last 40 years. By shifting the focus to the lower federal courts, it would ensure that no single nominee matters as much. Republican and Democratic senators would find it easier to reject unsuitable choices without risking backlash from wealthy donors and dyed-in-the-wool partisans. There’s room for tinkering, too. Perhaps three judges would be chosen at random from a circuit court and the president would select one. Perhaps the Senate would still give the prospective justice an up-or-down vote before they join the Supreme Court.

Republicans might bristle at the idea of supporting a plan like this when they hold all the advantages. But those benefits could be more fleeting than they think if the Democrats ride an anti-Trump backlash into the Senate and the White House on a platform of court-packing. Democrats, by the same token, might be uneasy about settling for what seems like a half-measure in an age of full measures. If the other side rejects compromise, then their case for extreme measures will only be stronger. The choice for each side isn’t between court-packing and the status quo. It’s between losing the judicial wars or ending them forever.