Max Stearns
The Republican-controlled Senate's decision to allow Donald Trump to replace Justice Ruth Bader Ginsburg on the eve of the 2020 election, after invoking the so-called “Garland Rule” to disallow Obama to replace Justice Antonin Scalia in the final months of his administration, discredits Chief Justice Roberts’s admonition against Obama Justices or Trump Justices. Trump seized three seats on the nine-member Supreme Court in his four-year term even though Justices Scalia and Ginsburg died four years and seven months apart.
The Garland rule was contrived and disingenuous. One might imagine a rule allowing a President’s four year term to correspond with any overlapping four year window (the same four years (traditional), one year before to three in (the Garland rule), two years before to two in, or, taking this to an extreme, three before to one in). It is impossible to defend matching a five-year window, one year before, and four in, to a four-year term. This is what the Republican Senate did for Trump, and it can only be explained based on raw political power. That, of course, flies in the face claiming non-partisan Justices.
Democrats, rightly outraged, are flirting with Court-packing, with several plans proposed. Some require amending, or seek to avoid that with clever yet doubtful strategies, such as capping terms to eighteen years en route to moving onto a lower court. And the ship has sailed on others, such as leaving the Supreme Court 4-4, but ensuring, moving forward, an even balance between Republican and Democratic appointees. I propose a different plan, one requiring no amending or strategic maneuvers: A temporary increase to twelve, evenly split, and a reversion back to nine, with the eventual ideological balance determined by factors neither party can predictably control. Some background is required.
When Justice Scalia died, the Supreme Court had a five-to-four conservative majority. The line-up, shown with traditional seat numbering, presents Republican appointees in bold and Democratic appointees in italics.
(CJ) Roberts, (2) Kennedy, (3) Breyer, (4) Sotomayor, (5) Kagan, (6) Thomas, (7) Ginsburg, (8) [Scalia], (9) Alito
Replacing Justice Scalia, the bracketed seat 8, with Obama’s nominee, Judge Merrick Garland, would have transformed a 5-4 conservative majority into a 5-4 liberal majority. The GOP leadership committed to no appointments in a final year of a presidential term—letting voters decide who makes the appointment—that is, until the shoe was on the other foot. The Republicans stole more than one Supreme Court seat. They stole a Supreme Court majority indefinitely, although the stolen control turned out to last four years.
Had Garland (or another Obama appointee) been confirmed, the Supreme Court would have shifted to 5-4 liberal until RBG died, replaced by Amy Coney Barrett or some other Trump nominee. At that point, the Court would have been restored, once more, to a 5-4 conservative majority. Assuming Biden wins and that the Senate flips Democratic, restoring what was lost would require not one, but four new Democratic appointments, transforming the now 6-3 conservative Supreme Court into a 7-6 liberal majority on a thirteen-member Court. This proposal is more modest, promising a temporary evenly divided Court, extending two, arguably underserved, olive branches to the GOP.
I will start by observing that I truly dislike my own proposal in every way but one—in comparison with alternatives. I have two goals: (1) undoing the damage wrought to the Supreme Court’s legitimacy by the Trump-era Republican Senate; and (2) creating incentives to ensure the proposed Court expansion is limited and temporary, with the long term goal of restoring a permanent nine-member Supreme Court, and one whose ultimate ideological balance is randomly determined, not subject to either party’s strategic control.
The plan:
I propose a statute adding three Justices, bringing the total to twelve, set as a maximum. After the later of two-years or upon setting the Court to twelve members following Biden’s inauguration, each Justice who retires or dies will not be replaced until the Court resets permanently back to nine members. Until the later of reaching twelve members or two years, the Senate shall be governed by the following rule for advice and consent: for any initial replacement nominee, the Senate consensus level must be 55 members (assuming the present 100 member Senate), and if the initial nominee is not confirmed, the consensus level reverts to simple majority of 51.
The statute would be self-executing and not be subject to federal court review for claims of constitutionality. Failing that, each provision would be severable such that if any part were struck down on constitutional grounds, the remaining provisions would stand. The statute will sunset once the Supreme Court is restored from its maximum of twelve back to a total of nine members.
The explanation:
Why twelve?
A more obvious plan would add four seats, bringing the total to thirteen, with a majority of seven liberal justices on a thirteen-member Court. I propose twelve, not thirteen, for three reasons: First, the goal is not an enlarged Court; it is to restore the Court’s legitimacy with a one-time (partial and incomplete) rebalancing, and then to restore the Supreme Court's size back to nine. Second, an even-numbered Supreme Court, because it is unsustainable long term, risking evenly divided decisions, and affirmed lower court judgments lacking precedential effect, raises the stakes, possibly encouraging some degree of coordination and cooperation across conventional ideological divides. Litigants will be wise to present cases and arguments that are plausibly cross cutting, less obviously ideological. Third, and perhaps most importantly, this constitutes one of two embedded olive branches, the purpose of which is to encourage future cooperation. That may sound unduly optimistic, even Pollyannaish. The stakes are simply too high not to try. The concession makes plain which party is behaving properly and why—not to exercise maximal power, but to restore the long term legitimacy of a vital institution.
Why the later of two years or twelve members?
The idea is to pack the Supreme Court to the maximum twelve quickly to reset the balance, and also to allow Justice Breyer, who at eighty-two as of this writing is the Courts oldest member, and oldest liberal, to resign and be replaced prior to the rule disallowing replacements once the Supreme Court has twelve members. This too relates to what happened with Merrick Garland. Allowing Biden to replace Breyer ensures the temporary initial even balance on which the proposal rests for the twelve-member Supreme Court.
Why sunset?
This proposal is awful. Not as bad in my opinion as what the Republicans did, but still bad. The goal is to restore the Supreme Court as a functional—and legitimate—institution. A twelve-member Court will be functionally challenging at best. It risks too many evenly divided outcomes, too many opinions, and too many novel doctrinal approaches. I dread teaching what such a Supreme Court would produce. It was once most tragically and grimly stated that a town must be destroyed to be saved. If so, the goal must be the saving, never the destruction. Here the goal is to end the gaming, not to set off an endless round of further games that some Court-packing plans risk inviting.
Why the 55, then 51, consensus?
This is an embedded secondary olive branch. Let’s consider Roberts’s independent-Justice admonition as aspirational. At least some degree of bipartisan agreement is superior to complete partisan breakdown. The goal is to encourage more centrist appointments initially, hoping to build consensus, but I’m not naïve. If the other side (okay, let’s call them Republicans) won’t play ball, the Democrats need a realistic threat—a simple majority. This flips the usual pattern of moving from stronger ideologue to more centrist (consider Robert Bork, followed by Doug Ginsburg, followed by Anthony Kennedy, upon Lewis Powell’s retirement) instead to centrist as a prelude to a stronger ideologue. Were this scheme implemented, I do not anticipate that Presidents would risk gaming with an initial throwaway nominee, hoping she or he fails with the goal of then securing a stronger choice. The stakes are simply too high, and no credible nominee would go along. Most importantly, no President likes failure.
Why severance?
The 55/51 provision, and the non-reviewability provision, might be unconstitutional. The Senate’s internal protocols might not be subject to statutory constraint, and the judiciary might disallow removing such a case from the dockets. The caselaw is complex, even muddled. Conversely, it is possible that this would all be regarded a nonjusticiable political question. Whatever these conflicting doctrinal implications, I would avoid tossing this baby out with the bathwater. And if the 55/51 provision were to fail, the Senate could adopt it with an internal rule.
Why now?
There are Republican and Democratic Justices. Someday, perhaps, the Chief Justice claim might go beyond aspirational. We must move past the immediate fantasy.
I welcome your comments.
[Special thanks to Michael Abramowicz and David S. Cohen for insightful comments on an earlier draft.]