Law & the Courts

Is the Conservative Movement for Supreme Court Reform Dead?

(Jonathan Ernst/Reuters)
It shouldn’t be.

As more and more of our political debates are settled by the judiciary, it has become uncontroversial to describe the Supreme Court as a political institution. We understand the ideologies of Supreme Court judges to be broadly continuous with the ideologies of the elected politicians who appoint and confirm them, and thus the rulings they generate. The consensus of the political class regarding Supreme Court appointments is that presidents should seek politically simpatico justices.

Justice Clarence Thomas was the last high-court nominee confirmed by a Senate of a different party from the president who nominated him. Liberal justices Ginsberg, Breyer, Sotomayor, and Kagan were appointed by Democratic presidents and ratified by a Democratic Senate; conservatives Roberts, Alito, and Gorsuch were appointed and approved by Republicans.

From one perspective this looks petty and partisan. Yet such ideological sorting also concedes the court’s unglamorous modern reality. If judges are to be summoned to address matters that in an earlier era would have been managed by elected politicians — health-care policy, abortion, etc. — then it is democratically defensible for those judges to represent clearly and accurately the divide of American thought.

Justice Anthony Kennedy helped delay an inevitable conclusion, in which one side of America’s ideological divide would eventually secure clear control of the Supreme Court. During his 2006–2018 peak of influence, four conservative justices faced down four liberal ones, and Kennedy’s esoteric personal philosophy broke the ties in various, often seemingly random directions. But with Kennedy now gone, and a Republican president and Senate eager to confirm his successor, we are set to enter a new age in which the Supreme Court will likely be understood as more overtly political than ever. Having secured America’s most-sought political prize, Republicans will shift their priorities defensively and opportunistically, as victorious political factions always do.

One likely casualty will be the death of the conservative movement for Supreme Court reform. During the Kennedy era, and the even more unsatisfying age before that, conservatives railed in countless books, columns, and speeches against the Supreme Court’s power, partially on the basis of politics, but not entirely so. The Court, they argued, was too powerful, being the only major constitutional institution whose decisions were not subject to the equivalent of a veto or veto override. As human lifespans increased, they said, the lifetime terms for Supreme Court justices were similarly metamorphosing into something grotesque and monarchical. Cloistered justices enjoyed terms that meandered across decades. A president who left office a generation ago, or even died, could still be exerting ideological influence on the country, fulfilling Thomas Paine’s famous warning about “the vanity and presumption of governing beyond the grave,” which he called “the most ridiculous and insolent of all tyrannies.”

Supreme Court reform is a good idea whose time never seems right, because the court’s powers have made the stakes so impossibly high.

Now poised to enjoy a 5–4 majority of the justices, conservatives will, one imagines, quickly abandon their irritation with the Court. But the accuracy of the Right’s institutional critiques will not cease to be valid simply because the Court’s outcomes will now be more politically agreeable. The debate over how to best hold accountable a Supreme Court that cannot help but act as a political institution remains valid, even when — perhaps especially when — conservatives are less interested in it.

There’s certainly little reason to believe a newly desperate Left will fill the reformist void competently. Already, there appears to be a conscious progressive effort afoot to mainstream the idea that the next Democratic president and Senate should engage in FDR-style court packing, expanding the SCOTUS bench with additional judges via ordinary legislation. Their political calculation holds blunt control of the Court to be the only thing that matters; they are mostly disinterested in any deeper critique of its authority in our constitutional system.

Supreme Court reform is a good idea whose time never seems right, because the court’s powers have made the stakes so impossibly high. When you’re in government, as Republicans are now, the temptation is to not look a gift horse in the mouth. When you’re in opposition, as Democrats are now, calling a time out to question the rules of the game looks weak and cynical. Conservatives do have an advantage, though, in that their pedigree on this issue is more established, which makes an era like this the best test of their seriousness.

Like Rand Paul and Marco Rubio, I’m personally a fan of term and/or age limits for Supreme Court justices, which already exist at the state level everywhere except Rhode Island. Implementing some sort of mechanism through which the Constitution’s insistence that justices “shall hold their offices during good behavior” can be enforced would probably be advisable as well, in order to give this most-unchecked branch some degree of ongoing oversight, beyond the extraordinarily high bar of judicial impeachment. In National Review, Ted Cruz once argued on behalf of a constitutional amendment forcing justices to run in a national retention election every eight years. A Senate vote of confidence on the same schedule could be equally effective.

A more rightward Supreme Court will yield many good things, yet political enthusiasm for outcomes should not supersede all other concerns. Supreme Court reform remains a worthy cause because it will help rein in an institution prone by design to imperial overreach, prevent the normalization of a black-robed House of Lords, and lessen exaltation of the president on the basis of his ability to nominate members of this aristocracy.

Our political understanding of the Supreme Court shifted dramatically last week. The case against its current institutional form did not.


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