The nominations process for the Supreme Court is broken. Whatever the origins of this crisis, it reached a point of no return when Mitch McConnell determined that the Senate would refuse to consider any nominee put forth by then-President Obama to fill Justice Scalia’s seat. All pretense of a norm of deference to the President on appointments having been abandoned and a total commitment undertaken to do whatever it takes to dominate the Court, McConnell cemented us to a nominations regime of pure and naked calculation. There is, of course, no last strategic act, and a rational response to McConnell’s gambit is to appoint enough justices to achieve a progressive majority as soon as progressives take the White House and Senate. And then, one should expect the same response from conservatives. Ian Ayres and John Witt have suggested expanding the Court temporarily in a rebalancing move. But I’m skeptical, for a number of reasons having to do with legal realism and the nature of the GOP coalition, that we will ever return to a stable, norms-guided regime.
Nor should we. Just as there’s nothing right about McConnell’s historical obstruction, there’s also nothing particularly right about the fact Justice Scalia’s seat became available in 2016 rather than 2017. It is not based on any principle of justice or democracy that a member of the Court should die in one year rather than another. It is difficult to identify a theory of representation that the current appointment procedure serves well. If you think, as I do, that justices should represent the people as they are constituted over longer stretches of time than legislative or executive politicians, then you would want them to serve long terms and to be insulated from reprisals and incentives from those shorter-term representatives.
But with longer lives, relatively young appointees, the ability strategically to retire, and the fact that nine is small number relative to a justice’s expected term, the Supreme Court does not meet this representational desideratum. When President Trump’s appointment is seated, conservative justices will maintain their 5-4 majority on the Court. Since Justice Thomas was appointed in 1991, Republicans have controlled the White House for about 11 years. Democrats have controlled the White House for 16 years. Conservative justices have held a 5-4 majority on the Court for every moment of those 27 years. One could of course add to the years of Republican control any number of years prior, but that hardly justifies single-party domination of the Court unless one takes a curiously specific position on the temporal distribution of control of the two branches. More importantly, though, I raise this only to suggest that it is difficult to defend the current practice of lifetime appointments to a very small body, where turnover is either gamed or the random product of death. McConnellism is merely the nail in the coffin. Our fundamental problem is that appointments are either strategically or randomly available and that they are so few that their wattage overwhelms our politics and, lately at least, has caused us to be far less than our best civic selves.
To do better, we need a neutral plan that makes control of the Court turn on future elections and that contains a transition rule acceptable to both sides. That’s why I’ve proposed a 28th Amendment, the text of which you can read here. Solving this problem has three critical components: (a) a workable institutional structure, (b) a reliable appointment procedure, and (c) a clear and acceptable transition procedure. I intend with this amendment to provide all three.
Here are the key institutional features:
- The Court will have 18 justices.
- Each justice serves an 18-year term and then becomes available to sit by designation on lower courts or to do other work within the judiciary. So life tenure in the judiciary is preserved, but a life-long seat on the Court is not.
- A justice departing early is replaced by the usual appointment procedure but only serves the term of the departing justice.
- The Court may hear cases in panels and en banc.
- Larger numbers decrease the importance of each individual justice, and the potential for a tie is a feature and not a bug.
And here is the appointment procedure:
- Each year, the president nominates a justice to replace the outgoing justice.
- The Senate may reject a nominee within 45 days of nomination if at least 60 members vote to do so. The Senate now has a time limit and must act affirmatively to block an appointment.
- After three rejections, the Supreme Court will review the nominees and return to the Senate its judgment as to which nominees are professionally qualified. It will continue to do so for each nominee thereafter.
- Once there are three Court-certified nominees, the Senate has 30 days to pick one of them. If it fails to do so, the president can pick any one of the three without Senate approval.
- Upshot: there is a check on the appointment of the corrupt and the crazies, but the president will almost certainly achieve an appointment each year.
The most critical element of any restructuring of the Court is a transition rule to which otherwise antagonistic parties can agree. The rule I propose keeps the current members of the Court and treats them as though they had been appointed according to the above system. The additional vacancies will be filled, proportionately and separately by each of the political parties in the Senate. It may sound complicated at first, but the guiding light is that it generates a Court that reflects control of the White House during the 18 years prior to adoption. Here’s how it works:
- Justices appointed more than 18 years prior to ratification are treated for purposes of the term limit as though they had been appointed at the earliest possible date by the president of the same political party that had appointed them. This would go in order of seniority so that the most senior Republican-appointed justice would be deemed to have been appointed in the first possible year he could have been appointed by a Republican president. And so on.
- Justices appointed within the past 18 years will be deemed appointed in the year they were actually appointed, but if that year is unavailable then the next year in which there is a same-party vacancy. If there is more than one such justice, the first appointed will be deemed appointed in that year. In other words, we fill out the available slots by seniority, working forward from each justice’s actual appointment year. If there is no vacancy, then the most senior justice of that party is deemed retired and the process is begun again. Any justice who cannot be assigned an appointment year by this method is deemed retired.
- Actually applying the procedure makes it plainer. If the Amendment were adopted now, we would need justices to fill slots beginning in 2001 and ending in 2018 (18 justices, one per year). We begin by assigning appointment years to the justices appointed more than 18 years ago: Thomas, Ginsburg, and Breyer. Thomas is the most senior and is a Republican appointee. The earliest available slot for a Republican appointee is 2001, when George W. Bush was president, and so Thomas is deemed appointed in 2001 and would step down in 2019. Ginsburg would be deemed appointed in 2009, the first available appointment year for a Democratic appointee. Breyer, then, would be deemed appointed in 2010.
- Next, we turn to the justices who have been appointed in the past 18 years. Roberts was appointed in 2005 and Alito in 2006. Both of those years are available, and so both are deemed appointed in their actual appointment years. Sotomayor was appointed in 2009, but that year is unavailable, because Ginsburg has been deemed appointed in that year. The next year in which there is a same-party vacancy is 2011, because Breyer has been deemed appointed in 2010. Thus, Sotomayor will be deemed appointed in 2011, and Kagan, because she was appointed in 2010, will be deemed appointed in 2012. Gorsuch’s actual appointment year is 2017, and that year is available, as is 2018 for any Trump appointee filling Justice Scalia’s seat.
- We now have nine vacancies corresponding to various appointment years. These would be filled as follows. Any vacant appointment year will filled by a justice selected by a majority of Senators of the same political party as the president for that year. So Senate Republicans would make appointments for the years 2002-2004 and 2007-2008, and Democrats for the years 2013-2016.
- Note that the procedure above handles more exotic configurations of the Court, sometimes forcing retirements, but always matching the political composition of the Court with control of the White House during the prior 18 years.
Here is the transitional Supreme Court:
- 2001: Thomas
- 2002-2004: 3 new Senate GOP appointees
- 2005: Roberts
- 2006: Alito
- 2007-2008: 2 new Senate GOP appointees
- 2009: Ginsburg
- 2010: Breyer
- 2011: Sotomayor
- 2012: Kagan
- 2013-16: 4 new Senate Democrat appointees
- 2017: Gorsuch
- 2018: new Trump appointee
In 2019, Thomas steps down and is replaced by a Trump appointee. In 2020, the first new GOP Senate appointee steps down and is replaced by a Trump appointee, etc. The result is that GOP-appointees would hold a 10-8 majority until 2021, when the new president would begin making appointments. This preserves the status quo until the next presidential election, on which a Supreme Court majority will turn in predictable fashion. But, also, with greater numbers there is the chance that political majorities on the Court will be more tenuous and less ideologically rigid.
I believe that the nominations crisis that became impossible to ignore with the blockade of Merrick Garland presents an opportunity to create a more representative Court and an appointments process less prone to degrading our political virtues. My amendment is one way forward, and I would love to debate its merits and alternatives.