Imagine yourself at a heated college basketball rivalry in front of a packed house evenly split between the two schools. Each time the referees make a call, half of the crowd cheers its approval. The other fans, meanwhile, think the refs are idiots and lob insults, expletives or worse.
If the important call goes in favor of Team A, Team B and its supporters are certain the fix is in. If the important call favors Team B, Team A and its supporters contend they are being cheated.
Sadly, on a much larger and important stage, that is how too many people have come to look at U.S. Supreme Court decisions. For too many Americans, the court’s makeup is fine as long as it rules in the way you prefer. If not, there is a clamoring for change.
And that’s where we find ourselves today.
A 36-member panel called The Presidential Commission on the Supreme Court of the United States has been studying court reform and holding hearings. A final report from the commission is expected to be presented to President Joe Biden in about a month.
The commission’s review was a campaign promise Biden made amid pressure from activists and Democrats to react after the court’s composition tilted to the right under then-President Donald Trump. The panel is being led by Bob Bauer, who served as White House counsel for then-President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served in the Office of Legal Counsel for Obama.
While no one knows for certain what will come in the commission’s final report, some progressives have called for term limits and demanded that Biden pack the court, adding justices to it to act as a bulwark against challenges to voting rights, abortion rights and civil liberties.
We think either of those possible changes – term limits or packing the court – would be a dreadful mistake.
While there is nothing in the Constitution that dictates the number of justices – Congress originally set the size of the court at six members – the number has been nine since 1869. And we would argue that, overall, the number has worked well for the past 150-plus years.
On the issue of packing the court, which then-President Franklin D. Roosevelt tried but failed to accomplish in the 1930s, a major concern would be continued tinkering by Biden and his successors in the Oval Office. For example, if Biden successfully pushed for an expansion to 11 justices with the current Democratic-controlled Senate, what would keep the next president – possibly a Republican with a GOP Senate – from making it a 15-member court? Then, another Democratic president who follows later could seek a 19-member court.
It’s easy to see that could get out of hand rather quickly.
We also oppose term limits on U.S. Supreme Court justices because we believe that would only make the court appear more, not less, political in the eyes of the public. There would be even more nasty confirmation fights, and such a move could even raise dangerous questions about certain rulings.
J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals for the 4th Circuit, told The Washington Post recently that it’s easy to imagine the strategic games the term-limited justices may be tempted to engage in, smuggling through such-and-such a precedent – or overruling it – before so-and-so leaves the bench.
Even when the commission does finish its work, any proposals for change will face serious political headwinds with midterm elections coming up in 2022. And headwinds or no headwinds, we contend the court’s number of justices – nine – and its lifetime appointments should not be changed.
We continue to believe the greatest opportunity for changing the court should be – as it has been for generations – at the ballot box. The high court’s makeup has certainly been an issue in presidential and, to a lesser extent, U.S. Senate campaigns for some time, and that’s not likely to change.
Express your wishes for the high court by voting in presidential and Senate elections, not by arbitrarily adding the number of justices or imposing term limits on them.