How Democrats Could Respond to a Indefinitely Lopsided Conservative Supreme Court

Edit: With Justice Kennedy announcing his retirement on June 27, 2018, this piece has switched from thought experiment to very real recommendation. The United States is the only advanced democracy with lifetime Supreme Court appointments. It’s time for that to change.

The Supreme Court has survived in a state of rough equilibrium for decades, with 4 liberal Justices, 4 conservative Justices, and Justice Anthony Kennedy, who is only mostly conservative. There have been plenty of decisions that have left half of our increasingly polarized politic unhappy, but the Court has not become so one-sided as to cause either the country’s liberals or its conservatives to lose faith in the institution completely.

There is now a very reasonable chance that will change. If either Justice Kennedy or any of the 4 liberal members of the Court die or retire, then the Court will become a lopsided conservative institution, and it will stay that way for the foreseeable future.

Setting aside the question of whether that is fair or good for either the Court itself or for the country, I would like to pose a hypothetical. Suppose that it does happen; suppose that one of the 4 liberal members of the Court leaves it and Trump replaces them with a hard line conservative. What could Democrats do if they want to undo the conservative advantage on the Court?

At first the answer is obvious: nothing but rage, because that’s all they can do. To become interesting, the hypothetical needs a further concession: suppose that Democrats take both the Senate and the White House in the 2020 election, a reasonably plausible occurrence.

Democrats cannot rely on a conservative Justice leaving the bench under a Democratic president. Notwithstanding the assumption baked into this hypothetical that it just happened, a Justice leaving the bench when a president is likely to appoint someone diametrically opposed to that Justice’s ideology is rare. Justices avoid it if they can. The last time it happened was in 1991, when George H.W. Bush replaced Thurgood Marshall with Clarence Thomas.

They do have one option: make the Court bigger and appoint all the new Justices. The size of the Court has changed before; both growing and shrinking. However, the ideological motivation would be plain, and there’s a dirty word for that: court packing. In these polarized times, the Democrats could probably get it done if they held majorities in the House and Senate, but it would reek of corruption, giving Republicans an obvious message to carry with them into the next elections.

It would also be a plain escalation of political tactics, and if the recent demise of the filibuster carries any lessons, it’s that these days neither party has any incentive to de-escalate. Republicans would find a way to undo it the next time they were in power, perhaps by packing the Court even more, with the excuse that they were merely restoring it to its pre-Democratic packing balance.

Instead, under this hypothetical, Democrats should pursue a tactic that would both allow them to appoint Justices right away and carry the imprimatur of fairness: it should reform the Court.

Calls have been increasing for term limits on the Supreme Court. With improvements in medical science, with the appointment of younger Justices, and with the increasing importance of the Court, the need has become clear. Without it, a single appointment carries with it relatively enormous power, stretching out as much as three decades, and that power is bestowed haphazardly to some presidents and not others. The case has been made time, and time, and time again.

So under the hypothetical outlined above, Democrats should advocate for a simple rule: starting immediately, there will be no fixed size to the Supreme Court. Instead, one Justice will be appointed on some date in each odd-numbered year. Each Justice appointed this way will serve for exactly 18 years. No other Justices will be appointed.

If passed, this would mean that the 2020 Democratic president would be entitled to nominate a tenth and eleventh Justice. Whoever won in 2024 would be entitled to nominate two more. As the current Justices retired, they would not be replaced, giving them the added benefit of being able to retire when they want, irrespective of who is president. After the last of the current Justices retires, the Court would be a rotating bench of 9 Justices, each serving for 18 years.

This would be a fair system. Each president would be entitled to exactly two nominees per term. The term would be long enough to carry with it all the benefits of life tenure; in fact from 1941–1970, the average term of a Supreme Court Justice was only 12 years.

Republicans would be inclined to oppose this, since they would want the conservative majority to stay just how it was. But Democrats could get some Republicans on board in a few ways. First, most Americans would support this. In polls, Americans overwhelmingly support term limits for the U.S. Supreme Court. If Republicans oppose it, Democrats would have a rhetorical tool to use against them next election. Second, if Republicans block it, Democrats would have more political cover to simply pack the Court. Finally, if pressed, Democrats could delay implementation of the new law so that the current president would receive only one nomination, or even none, giving conservatives more time with the conservative Court while holding out hope that the sitting Democratic president would benefit from incumbency and win re-election in 2024.

I’m being a bit cagey about what exactly this would require. Some think it would require amending the Constitution. Others think it does not. I am not sure who is right, but I would advocate attempting the change by statute for three reasons. First, it could succeed, whereas a constitutional amendment, with its requisite supermajorities of both Congress and of state legislatures, would probably fail. If you must choose between a path that might succeed and one that will almost certainly fail, the correct choice is obvious.

Second, if it is struck down in court, then it would be easier to pass a constitutional amendment. The idea would be out there, and its failure in court would only promote its public support, given that it would have likely been struck by the body it would directly affect.

Finally, I am not sure if this even could be challenged in court. To challenge a statute, a person has to have standing, which means they must have been injured by the action. Given that the Congress does have the authority to increase the size of the court, it seems to me that no one is injured until the first Justice is required to step down — 18 years later.

The need for Supreme Court term limits has never been clearer. This mechanism by which they could be approved is plausible. That does not actually make it desirable; the hypothetical I outline would cause great instability. I hope it does not take place. If it does, though, I hope I am right about how it ultimately gets resolved.