Stephen Breyer, Retirement, and the Best Way to Reform the Supreme Court

As we start to resurface back into the blog a bit (after an unexpected two weeks where I didn't have a lot of time to write), we're also going to wade back into writing about politics & elections analysis, as we're now in the beginning stages of the 2022 midterm elections.  If you've read this blog a long time, you'll know that most of the focus on this site is not on political issues (though I have been weighing in vociferously at the missed opportunity Manchin/Sinema have cost the Democrats by not destroying gerrymandering) narrowing my scope toward elections analysis, which is more my area of expertise.  However, I am going to take a brief break from that to talk about the Supreme Court, and the problem that it currently faces not just in terms of threats to its legitimacy, but in the way that it essentially is becoming too insulated from the American public that it has vast dominion over.

The biggest question for watchers of the Supreme Court today is whether or not Justice Stephen Breyer, a left-leaning, mild-mannered man of 82 who the Democratic Party desperately want to retire will in fact leave the Court.  This is driven in large part based on two recent confirmation hearings: Merrick Garland's and Amy Coney Barrett's.  In the former, the Democrats had the opportunity to flip the composition of the court, as the unexpected death of Antonin Scalia left them an opening to replace the conservative justice with a more liberal incumbent.  The Republicans (specifically Mitch McConnell) were willing to throw out all sense of normal procedure by refusing to let President Obama's nominee, Merrick Garland, get a hearing or an up-and-down vote on the floor of the Senate.  This plan worked for the conservatives-Donald Trump won the electoral college, and was able to replace Scalia with Neil Gorsuch, maintaining the conservatives reach on the Supreme Court.

The conservatives scored an additional gain on the Supreme Court when Ruth Bader Ginsburg died.  Despite being closer to the election than Scalia was (an election both Donald Trump & Senate Republicans would lose), McConnell rushed through the nomination of Amy Coney Barrett, and in the process gained a 6-3 majority in the Court.  The left is now 0-2 in two VERY consequential nomination procedures, and as a result they are right to be furious that Breyer is willing to give them another potential loss when they could score an easy win if he retired now (with the Democrats having both the Oval Office & the Senate for the first time in seven years).

But these three situations point to another problem that we need to admit-the Supreme Court is inherently broken, and is in desperate need of reform.  The reality is that if you can game the system like this to disregard the will of the people (which in both cases this did), that's a problem.  When Barack Obama wins the popular vote (twice), and gets one less nominee in eight years than Donald Trump who lost the popular vote (twice), that's also a problem.  And there is a pretty clear, fair, & equitable way to reform this system to make it more representative & less reliant on certain justices retiring or maintaining a heartbeat (it's so fair & equitable certain sections of the political spectrum have already started talking it by knee-jerk reflex), and it's this: court expansion & court term limits.

Let's tackle expansion first.  This has been pejoratively called "court packing," and to some degree I disagree with this concept.  The reality is that, yes, adding to the Court opens a slippery slope opportunity to just keep expanding every time you have a majority, eventually turning the Supreme Court into a banana court.  But expansion makes sense for several reasons, and some of them are more practical than others.  In the United States, there are district courts, courts of appeals, and the Supreme Court.  In the case of the courts of appeals, which oversee a number of states rather than just one (or parts of one), there are 13 courts (11 overseeing ranges of US states, the District of Columbia, & the Federal Circuit Court), all of which have a "circuit justice" that sits on the Supreme Court.  Currently, because there are nine justices and 13 courts, three justices (Roberts, Kavanaugh, & Alito) get to oversee multiple courts.  This isn't dictated by any sense of seniority logic (if it was, Clarence Thomas & Stephen Breyer would get multiple courts), and as a result, expanding to 13 justices makes equitable sense.  If we did this, each justice would be equal, and there would be no incentive to, say, give multiple courts with justices who have similar ideology to you.  

The problem with expansion, though, is twofold.  One, it gives the president that gets to expand unfair power.  After all, were we to expand right now, Joe Biden would get to appoint four Supreme Court justices-if you agree with his ideology, you might love that, but it doesn't seem fair that all that power happens because of a one-time expansion, and it also incentives further, less logical expansion.  And two, it doesn't solve the larger problem long-term.  Expansion makes sense (13 justices matching the number of court of appeals is logical), but once those seats are filled, you're still going to have justices retiring to match the ideology of the president and Senate that they align themselves with (at this point, let's not pretend the judiciary is some independent arm of the government where there aren't D's and R's behind the names of the judges), and you're still going to have bad faith moves by people like Mitch McConnell who will deny Democratic presidents the right to appoint new justices.

So expansion should come with term limits, but not in the sense that we normally consider term limits, because term limits can easily be gamed (i.e. you can retire early to watch the term limits).  I usually don't like term limits because A) it solves nothing & reeks of ageism and B) it denies the people a voice.  You need to design term limits so that the people have a voice, and I think I have a solution that would do that.  Bear with me, cause we're about to get wonky and tied into some hypotheticals in Congress that aren't currently allowed.

Justice Stephen Breyer

Let's say that we expand the Court to 13 justices.  That leaves four openings for Joe Biden to fill.  But, as we said above, we don't think that Biden should be able to do all four, because that causes the slippery slope rule.  Instead, structure the law so that Biden can only nominate a Supreme Court justice one per Congress.  So Biden would get to appoint a justice during this term, and he'd get to nominate one in the next term-every president would get to do no less than two, no more than four justices (if they served a full eight-year term).

This would be accomplished through two changes in the nominations process that would need to be made.  The first would be a change in how justices leave office.  Let's say we're in the future, and all 13 of the justices are incumbents-the expansion is complete, and there are no openings at the beginning of a presidential term for the president to appoint.  In that case, on January 20th, the most senior judge on the court (regardless of their political persuasion) would be required to resign, and the president would get to appoint their successor.  This is a different kind of term limit because it's not something that can be gamed-a judge could retire early if they wanted a specific president to replace them, but they aren't really giving that president any new leeway, since the president can't gain an additional replacement through a retirement-the number is stagnate.  If anything, it disincentives doing something like retiring early to give a president an additional nomination, because you can better calculate when your party might gain the majority.  And it also means that the Supreme Court always has at least one person who represents the recent will of the people, but it doesn't have the revolving door issue of overreacting to a recent election (that might have been more a point-in-time than a national trend).  The Court would have term limits therefore, but it wouldn't be what we think of as traditional term limits where you can only serve 20 years or until you're eighty.  All newly-appointed justices would get a guaranteed 26 years, but may serve longer due to retirements and unexpected deaths.  Under this scenario, the court would have two justices appointed by President Clinton, four by President Bush, four by President Obama, two by President Trump, and one by President Biden, a system that feels considerably fairer.  This plan isn't perfect, mostly because it means that the Court won't be full as often as it is now, but this is a small price to pay for having a much more equitable and representative Court where the justices have little-to-no incentive to play politics.

There's a second reform, though, that would require this to work, and that's in the way we nominate justices.  I said above that we need to have a nomination each term.  What happens, though, when like in 2016 we have a Democratic president and a Republican Senate, the latter of whom refuses to seat any of the president's nominees?  This is where we need to change the law to require a hearing, and not a hearing like we see it today.  After all, McConnell could just keep denying Biden's nominees until Biden was out of office-not a corrected system.  Instead, though, we'd need a change in Senate procedure (a relatively radical one, but one that would fix this problem), that would require McConnell to A) hold a vote and B) confirm a justice, while still maintaining the Senate's advise & consent laws (after all, the president shouldn't just get to pick whomever they want).

This is fixed by the president nominating two nominees rather than just one.  Both nominees would get a hearing, a required hearing, and both nominees would then get a vote before the Senate against each other.  For example, let's say when Justice Kennedy resigned, instead of just Brett Kavanaugh, Trump had nominated Kavanaugh and Amy Coney Barrett.  Both would've received hearings, and then the full Senate would get to vote for either Kavanaugh or Barrett; one of these two will get the spot in the Court, but it is up to the Senate to decide which.

This is a change to Senate procedure, but it is one that could be accomplished through rule changes & changes in the laws, and it would make the process considerably better.  For starters, it would moderate the Court-the party opposite the president would be incentivized to pick the more moderate of the two nominees, and try to pick off members of the other party to join them.  Secondly, it'd require someone replace them-there's no "vote for no one" in this scenario...someone gets confirmed.  And third, it's something that could be emulated in the lower courts.  There's no reason you couldn't implement this lower down the courts (initial expansion, then required term limits based on appointment rather than age) so that all of the courts are more representative of the electorate.  Other than logistics, the only flaw in this system I can see is that the president nominates two wholly unqualified people (i.e. if Trump had nominated both Don Jr. and Ivanka, knowing at least one of them would make it on), but that president & that president's party would suffer the consequences at the ballot box, and it's only one justice in a point-in-time (i.e. this also gives less power to specific justices who can hold that power for decades like Anthony Kennedy or Sandra Day O'Connor did).  By implementing these reforms, we are less reliant on the whims (and pulses) of select justices, and the Supreme Court will be more a reflection of the will of the people, which as it becomes increasingly polarized & partisan, is a necessity in order for it to remain democratic.