This past Wednesday, Senator Sheldon Whitehouse (D., R.I.) again attempted to take an axe to the legitimacy of the Supreme Court. He called the “six Republicans” on the bench “servants of right-wing dark money interests.” In one fell swoop, he both accused several justices of being partisan hacks and of being corporatist enemies of democracy. As Dan McLaughlin has explained before, the absurdity of this claim is palpable.
Statements such as these have become par for the course for Democratic leadership. As cries from progressives for Court-packing and other methods to “reform” the Court, such as term limits for justices, grow louder, legislators have assailed the legitimacy the Supreme Court has accumulated. After all, it is difficult to justify a total restructuring of a treasured American institution without first proving that it is irredeemably flawed. Unfortunately for progressives, it is the arguments they make about the Court’s lack of legitimacy and the proposals they favor to “reform” the Court that are actually irredeemably flawed.
Let’s start with Whitehouse’s claims about the Court’s legitimacy. For one, almost everything he said was dishonest. In addition to the attacks on the current composition of the Court, he went on to lambast the Left’s favorite boogeyman, Citizens United. But Citizens United has not disproportionately benefited the GOP. In fact, in recent races, the ruling that corporate money constitutes speech has aided Democratic candidates far more than their Republican counterparts.
Whitehouse’s, along with much of the Left’s, primary concern about Citizens United is its allowance of “dark money.” As explained by Open Secrets, a bipartisan organization devoted to tracking the funding of political campaigns, dark money constitutes any funding from an institution that is not required to disclose the identity of its members/donors. Organizations and companies can bypass the typical financial restrictions faced by PACs and Super PACs so long as their “primary purpose” is not political. But Democrats are the overwhelming benefactors of this exception. In the 2020 race, the sum of dark-money donations for Democrats/against Republicans was almost triple the total amount donated for Republicans/against Democrats in all of the most important races. Joe Biden was backed by $22 million compared with Donald Trump’s $8 million. In Georgia, the Democrats’ candidates for Senate raked in about $5.3 million versus Republicans’ $1.9 million. If the conservative justices were really “servants of right-wing dark money interests,” they should be frothing at the mouth at the prospect of overturning a ruling that so greatly favors Senator Whitehouse’s reelection prospects.
Similarly, Whitehouse’s implicit claim that the conservative justices vote en bloc appears to be projection. The Supreme Court has avoided the unceasing trend towards polarization that the legislative branch has been suffering from. We can look to the Supreme Court Database for evidence of this. In the 2018 and 2019 terms, since the confirmation of Brett Kavanaugh (widely considered the point at which the Court shifted right), the Supreme Court has heard 133 cases. Of these, 52 were unanimous, 31 were 8–1, 7–1, or 7–2, and 18 were either 6–3 or 6–2. Thirty-two cases were decided by a simple majority, and, even out of these, exactly half of them favored conservatives. When compared with the terms of 2000 and 2001, of the 172 cases brought before the Court, 46 were decided by a simple majority. Of these cases, almost 60 percent of them favored conservatives. Contrary to popular belief, the Supreme Court has actually gotten less partisan.
The idea that the members of the Supreme Court, some of the most esteemed, qualified, and knowledgeable civil servants in the country, would succumb to the same petty partisan squabbles as Congress is false. Among recent significant and liberal-favoring decisions are Bostock (6–3) and Department of Homeland Security v. Regents of the University of California (5–4), penned by Neil Gorsuch and John Roberts, respectively. By the same token, the recent decision siding against noncitizens and several leftist advocacy groups was ruled unanimously. The opinion was written by Elena Kagan, one of the most liberal justices ever to have served on the Court.
Despite the media’s best efforts to highly publicize the few closely split and highly contentious cases that do occur, the Supreme Court’s approval rating remains above 50 percent, in the mid to high 50s. Reality simply does not bear out the idea that the Supreme Court is suffering a legitimacy crisis.
Now let’s turn to the Left’s proposed “fixes” for this “problem.” Surely in large part because the problem they want to fix is not real, the most dramatic fix, Court-packing, continues to be abysmally unpopular. Its radical break with the nature of the Court and the obvious flexing of partisan interest also likely contribute to this idea’s unpopularity. So let us pass it by. Perhaps more insidious, however, are the supposedly more moderate methods to modify the Court. One example is the plan to impose 18-year term limits for justices.
There are several problems with this idea. For one, the hypocrisy of the House members calling for it is transparent. Any legislator who calls for term limits should vote to impose term limits on themselves first. After all, it’s not as though SCOTUS justices are subject to the corrupting incentives that congressmen are when they search for campaign donations.
Additionally, it’s unclear what term limits would accomplish. Do judges suddenly become worse at interpreting the law after 18 years? This seems counterintuitive; one would think that accumulated experience improves scholarship. If the worry is about their age or condition getting in the way of their job, individual justices can always be replaced through retirement or impeachment.
Some claim that term limits would ensure that the Court becomes more representative of the American public, by forcing a more rapid turnover rate. But why should we care about how representative the Supreme Court is? Justices shouldn’t be nominated based on their identity. They should be nominated based on their judicial philosophy, peer recommendations, qualifications, and record. Some of the most important opinions of all time were only possible precisely because of how removed justices were from the political landscape. John Marshall Harlan had been on the bench for over 18 years when he wrote his famous dissent in Plessy v. Ferguson. Brown v. Board of Education was decided unanimously in 1954, a time when the American public was not particularly renowned for its support for the civil-rights movement. It does not matter how popular or representative a decision is — it just needs to be correctly decided.
The constitutionality of Supreme Court term limits is even more worrisome. Article III, Section I, of the Constitution states: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The Founders intended for justices to be fully independent of the other branches of government. To ensure this, as well as to guarantee that highly skilled lawyers view their appointment to the Supreme Court as a crowning legal achievement, Alexander Hamilton advocated life terms. Many constitutional experts agree that the phrasing implies that justices must be afforded life tenure.
If the reform bill offered by congressional Democrats continues to pick up steam, what is to stop cynical politicians like Senator Whitehouse from changing the term limits to 14 years, or ten years, or six years? Some have pointed out that the rule change could include a grandfather clause, meaning that justices confirmed before the passage of the bill would not be subject to the term limit. But there is no constitutional assurance that future bills would need to include such a clause. If the Constitution allows Congress to impose term limits on the Supreme Court, there is no reason to believe representatives would not remove justices they dislike at will by simply fiddling with the term limits.
The only way to circumvent all of these issues would be to amend the Constitution, which, due to the ongoing popularity of the Roberts Court, seems nigh-impossible. Defenders of the Court should acknowledge, however, that an upcoming series of highly contentious cases to be decided this term may weaken the Court’s bipartisan popularity. The media will of course go haywire if any of them go in conservatives’ preferred direction. But, as always, we should resist unnecessarily embarking on a radical path to revolutionize a treasured pillar of our political system. And we should certainly be honest about it. Sheldon Whitehouse should give that a try sometime.