Considering Supreme Court Reform

Damon Meggyesy Edited By Julia Drobish

Damon Meggyesy is from Oakland, California and is a first year at UCSB. He was an Ignite Fellow for Teach for America and served as the Associated Student's Committee on Committees Outreach and Recruitment Coordinator during the 2021-2022 school year.

ABSTRACT

As the highest court in the country, the Supreme Court has a massive influence on shaping laws that affect Americans across the country. From gun rights to abortion, the Supreme Court has the power to make lasting decisions on some of the most divisive issues facing the country. However, many believe the Supreme Court doesn’t reflect the values of the nation, and dissatisfaction with the court is on the rise. The increasingly conservative Court looks to be drifting further away from the values of young Americans and many fear the Court is losing influence and prestige. In order to address the multitude of problems plaguing the Court, serious reform must be considered to modernize the Court in order to ensure its longevity and protect its legitimacy. Serious proposals have been floated by both legal scholars and experts that seek to address the divisive appointment process, aging justices, and entrenched conservatory majority. Instead of proposing a reform, this article instead seeks to weigh the merits of a diverse range of proposals, offering an overview of potential reforms and situating them within a broader context. Through a discussion of many types of reforms, of varying scopes and focuses, the article attempts to highlight the

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most important changes necessary to modernize the Supreme Court for a new age.

INTRODUCTION

Supreme Court reform has entered the political sphere as a serious area of concern for many. Many Americans have begun to call for changes to the Court that has lost its credibility amongthe public.1 In response to this outcry for reform, President Biden created a presidential commission dedicated to reviewing Supreme Court reform. This commission published its findings in December of 2021 to little public attention. Since then, it feels as if the momentum and energy surrounding serious reforms has fizzled out. Despite this, Supreme Court reform remains necessary for its continued success and longevity. Like recent appointments, the upcoming appointment of the newest nominee, Ketanji Brown Jackson, is all but certain to be fraught with partisan fighting and division.2 This inevitable partisanship underlines the importance and lasting need for Supreme Court reform, bringing back legitimacy and perceived impartiality of the Court. While achieving meaningful reform is unlikely in our current divided political climate, this article seeks to explore a vast range of proposed changes for future implementation or further examination. This article will address both moderate and radical reform proposals. This article does not seek to advocate for one proposal but rather conducts an overview of the reform debate and explores past research and proposals by legal professionals. In

1 Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement, Pew Research Center (February 2, 2022), https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-courtturned-more-negative-before-news-of-breyers-retirement/.

2 Stephen Collinson, Another testy Supreme Court battle is the last thing America needs – but it’s probably what lies ahead, CNN (January 27, 2022, 5:46 AM EST), https://www.cnn.com/2022/01/27/politics/joe-biden-supreme-court-nomineefight/index.html.

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doing so, meaningful discussion and frameworks can be created and advanced in preparation for political circumstances when reform is more likely and more popular. Surveying a vast range of reforms also attempts to avoid overpoliticization within this article. While Court reform may be viewed as inherently liberal, introducing a wider range of proposals incorporates a variety of perspectives from across the political or legal spectrum. Proposals can be weighed by considering both the merits and challenges associated with them. Each solution should address a pressing issue facingthe Court. Considering feasibility and public opinion can explore the likelihood of a proposal's future implementation. Each proposal should additionally strive to create balance and neutrality within the Court. This divorce of partisanship from the Courtreinforces Americans’ trust and confidence in the Court, an essential component of its success. Lastly, attempting to weigh how the Court represents American values is important to each proposal. The Court should be able to adapt to the changing ideals and beliefs of the American people and should be a representation of the majority instead of a shrinking minority. In considering each proposal, it is also important to evaluate the challenges of implementation and the potential political blowback of each. How does each proposal affect judicial independence? Will proposals change the Court with each new administration? Will changes to the Court invoke a response from oppositional forces? Considering these hypotheticals can help paint a more detailed picture of each proposal and allow us to consider the repercussions of each.

I. COURT PACKING

One of the most commonly proposed and talked about reforms is the idea of “packing” the Supreme Court. In other words, adding additional justices to the current nine-memberbench. These new justices would likely share the views of the party in power and could quickly swing the Court’s balance of

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power one way or the other. Court-packing is not a new idea. President Franklin D. Roosevelt initially floated the idea to protect his New Deal legislation.3 While his proposal never reached Congress, it may have succeeded in applying political pressure to the Supreme Court. Today, Democrats have floated the proposal of court-packing to add more liberal justices to the Court. Many Democrats feel the Court does not reflect the values and opinions of the majority of Americans and believe basic rights such as access to voting, abortions, and healthcare are under attack.4 Additionally, the newest three justices, not including the recenthearings of Justice Jackson, have been appointed under extremely divisive circumstances.5 Justice Gorsuch was appointed after Senator Mitch McConnell prevented an Obama nominee from being confirmed, Justice Kavanaugh was appointed under allegations of sexual misconduct, and Justice Barrett was appointed against the dying wish of the late Justice Ginsburg, who wished the

3 FDR & The Court Packing Controversy: Full Script, Supreme Court Historical Society, https://supremecourthistory.org/schs-historical-documentaries/fdrcourtpacking-controversy-full-script/. (last visited April 15, 2022).

4 The Associated Press, Abortion rights jump to a top priority for Democrats in a new poll, NPR (January 13, 2022, 1:55 AM EST), https://www.npr.org/2022/01/13/1072671395/abortion-rights-jumps-to-a-top-priorityfor-democrats-in-new-poll.

5 Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, The Washington Post (October 8, 2020), https://www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/.

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nomination to wait until after the upcoming 2020 election.6,7,8 The argument follows that adding more justices would balance the Courtand retroactively correct the past appointments. Packing the Supreme Court is not as difficult as one might assume. The Constitution does not explicitly outline the number of justices on the Supreme Court. Despite criticism of the plan as ignoring the current system of checks and balances, the Constitution gives Congress the power to determine the number of justices on the Court. Packing the Court would be relatively simple. Under current rules, a simple majority in the House, 60 votes in the Senate, and presidential approval would be all it would take to expand the Court. While currently, the Senate is split 50-50 among Democrats and Republicans, it is feasible that packing the Court could occur in the future. Despite low public confidence in the Court, a majority of Americans oppose court-packing. In a poll conducted by Mason-Dixon Polling and Strategy, one of the highest-ranked polling firms by FiveThirtyEight, 68 percent of Americans opposed any form of court-packing.9,10 Despite this

6 Amita Kelly, McConnell: Blocking Supreme Court Nomination 'About A Principle, Not A Person', NPR (March 16, 2016, 12:31 PM EST), https://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-courtnomination-about-a-principle-not-a-person.

7 Terry Gross, Reporters Dig Into Justice Kavanaugh's Past, Allegations Of Misconduct Against Him, NPR (September 16, 2019, 3:29 PM EST), https://www.npr.org/2019/09/16/761191576/reporters-dig-into-justice-kavanaughs-pastallegations-of-misconduct-against-him.

8 Matthew Choi and Josh Gerstein, Ginsburg's wish: 'I will not be replaced until a new president is installed', Politico (September 18, 2020, 11:26 PM EDT), https://www.politico.com/news/2020/09/18/ginsburg-rbg-dying-wish-418108.

9 FiveThirtyEight’s Pollster Ratings, FiveThirtyEight (March 25, 2021, 8:00 AM), https://projects.fivethirtyeight.com/pollster-ratings/.

10 Kelly Shackelford, Americans agree: Court packing is dangerous, The Hill (April 25, 2021, 8:00 AM ET), https://thehill.com/opinion/judiciary/549966-americans-agreecourt-packing-is-dangerous/.

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public opposition, many view court-packing as one of the most effective proposals for returning the Court to equilibrium. Implementing court-packing would quickly shift the balance of power in the Supreme Court. Under the current administration, this would likely result in the appointing of liberal justices to oppose their conservative counterparts. With many accusing Republicans of attacking voting rights and restricting access to voting, this new alignment of the Court could potentially expand and solidify Democratic power. In his article for the Atlantic, Harvard Law professor Michael Klarman argues that expansion of the Court will serve to protect the basic infrastructure of American democracy.11 Klarman argues that “Unless Democrats expandthe size of the Court… democratic reform will be doomed before it even begins” because the current Republican-leaning Court is likely to strike down such necessary reforms. Additionally, reforms and rights that the majority of Americans desire could be protected and expanded. The legality of abortions, the introduction of Medicare for all, more expansive climate change regulation, and controls on firearms would be feasible under a rebalanced Supreme Court.12 These issues are supported by the majority of Americans but are in jeopardy under the current makeup of the Supreme Court.

If packing the Supreme Court was such a good option, why hasn’t it been passed? In addition to staunch Republican opposition, many worry about the negative repercussions of packing the Court. Many argue that packing the Court would only further politicize and delegitimize the Court in the public’s view. Additionally, a common criticism of court-packing is that it

11 Michael Klarman, The Democrats Last Chance to Save Democracy, The Atlantic (February 22, 2021), https://www.theatlantic.com/ideas/archive/2021/02/expandingcourt-now-or-never/618063/. 12 Lydia Saad, Americans Still Oppose Overturning Roe v. Wade, Gallup (June 9, 2021), https://news.gallup.com/poll/350804/americans-opposed-overturning-roe-wade.aspx.

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might solicit a similar response from Republican legislation and Congress, who might look to swing the Court in their favor.13 However, some have suggested that significant political changes may create a new political equilibrium instead of eliciting a response. In their article in the Yale Law Journal, Daniel Epps and Ganesh Sitaram suggest that liberal court-packing to introduce voter protection and anti-gerrymandering laws could introduce a “new progressive equilibrium.”14

Despite some optimism, it is equally possible that the Court’s balance could shift each election,destroying the political independence of the Court and essentially killing American democracy as we know it.15 No longer would there be an independent, neutral check on the legislature and president; instead, the Court would simply serve as an extension of the other two branches of government.

II. TERM LIMITS

Another commonly proposed reform for the Supreme Court is the introduction of term limits for the justices. Justices have increasingly served longer and longer terms throughout American history. From 1941 to 1971, justices served for an average of 12.2 years, while from 1971 to 2006, justices served an average term of 26.1 years -a nearly three-fold increase.16 This means that the American people have less input on who sits on the Supreme Court, with much less frequent vacancies, and has also resulted in the average

13 Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, The Heritage Foundation (October 5, 2020), https://www.heritage.org/courts/commentary/why-court-packing-would-be-devastatingour-republic. 14 Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148 (October 2019). 15 Bruce Ledewitz, A Call for America’s Law Professors to Oppose Court-Packing, 2019 Pepp. Law. Rev. 1 (May 30, 2020).

16 Stephen G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harc. J.L. & Pub. Pol’y. (2006).

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age of a Supreme Court justice increasing. Older and older justices are deciding important issueswho, despite their wealth of experience, are less in touch with younger Americans.17 The increasingly long terms of Supreme Court Justice have also resulted in increased politicization of the appointment process. Since nominations are far less frequent, their importance is magnified. This increased importance of nominations sparks political fights and controversy, damaging the prestige and legitimacy of the Court in the nation's eyes.18 No other developed democracy in the world has lifetime tenure for the judges of their highest courts, and the vast majority of US states also avoid lifetime appointments.19 Supporters of the term limit suggest that it would de-politicize the Supreme Court appointing process, as openings on the Court would occur more frequently and ensure that Justices remain intellectually fit and in touch. Before joining the Court, Chief JusticeRoberts said, “setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality… It would also provide a more regular and greater degree of turnover among the judges. Both developments would… be healthy ones”.20 Steven G. Calabresi and James Lindgren wrote one proposal garnering support. They propose an 18-year term limit for Supreme Court

17 Stuart Taylor Jr., Life Tenure Is Too Long for Supreme Court Justices, The Atlantic (June 2005), https://www.theatlantic.com/magazine/archive/2005/06/life-tenure-is-toolong-for-supreme-court-justices/304134/. 18 Calbresi & Lindgren, at 813. 19 Sital Kalantry, Lessons from India on the issue of Supreme Court justice term limits, The Hill (April 20, 2021, 4:00 PM ET), https://thehill.com/opinion/judiciary/549263lessons-from-india-on-the-issue-of-supreme-court-justice-term-limits/. 20 Gwynn Guilford, 117 years of data show why today’s Supreme Court nominees have more influence than ever, Quartz (July 10, 2018), https://qz.com/1324841/brettkavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-avery-longtime/#:~:text=That%E2%80%99s%20about%20where%20it%20was,the%20court%20 was%20around%2053.

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justices and draw from a proposal by Professor Philip Oliver from the University of Arkansas that would stagger vacancies every two years.21 Article III of the Constitution guarantees life tenure for Supreme Court Justices. It states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”22 Given this, most legal scholars agree it would be necessary to amend the Constitution to impose term limits upon the Court. A commonly proposed term limit is 18 years. This exceeds the average tenure that Justices have served over the lifetime of the Court but is far less than the incredibly long terms that modern-day justices serve.23 While constitutional amendments are inherently difficult, it is reasonable to imagine that a proposal for modernizing the Court with term limits could garner bipartisan support. Some legal scholars suggest that term limits should be applied to the existing justices as soon as the proposal passes, arguing that it is necessary to fix the Court immediately.24 However, it is likely that Republicans would be less willing to give up their current 6-3 majority immediately rather than phasing the majority out eventually. While a constitutional amendment is likely the most permanent and enforceable solution, some have argued that term limits are possible without amending the Constitution. The Senate could require potential nominees to pledge they will retire after their outlined term limit expires. Term limit pledges have existed, and there are pushes for pledges when legislation is impossible. The obvious flaw of this proposal is that Justices could easily renege on their commitments to retire. The Senate would have little recourse or enforcement methods other than impeachment. It has been suggested that

21 Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 Ohio St. L.J. 799 (1986). 22 U.S. CONST. art. III, § 1, cl. 2 23 Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 Ohio St. L.J. 799 (1986). 24 Id.

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asking judges to pledge to step down would damage judicial independence, and other judges might look down on those willing to make pledges just to secure a spot on the Court. Term limit reform might also come from within the Court itself. Internal rules outlining term limits could be created by the Court itself. Similar to pledges to the Senate, these rules would not be legally enforceable; however, internal pressure from other Justices or other methods of incentive/pressure could do the trick. Congress might aid this process by providing financial incentives for retiring, such as a large pension, or by reducing the number of legal aids for those who do not. Individual Justices could lead the way by self-imposing term limits, creating a tradition on the Court that might lead to more concrete rules in the future. Term limits are incredibly popular amongst the general public and seem to be popular amongst politicians on both sides of the political spectrum.25 In a 2020 poll conducted by PSB, 77% of Americans favored restrictions on Supreme Court Justices’ tenures, and a 2021 survey by the Marquette Law School found that 72% favored fixed terms over lifetime appointments.26,27 Support for the proposal cut across party lines and its widespread public approval makes term limits one of the most feasible reforms. Imposing term limits would help to create a younger, more accountable Court and would reinforce the Court’s legitimacy in theeyes of the public. As Justices have served longer and later into their lives, instances of mental decrepitude as well as the risk of serious injury or illness have increased

25Seung Min Kim & Robert Barnes, Supreme Court term limits are popular — and appear to be going nowhere, The Washington Post (December 28, 2021, 6:00 AM EST), https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/. 26 New Poll Shows SCOTUS Term Limits Still Popular Across Party Lines, Fix the Court (June 10, 2020), https://fixthecourt.com/2020/06/latest-scotus-term-limits-poll/. 27Marquette Law School Supreme Court Poll November 1-10, 2021, Marquette University Law School Poll (Novemeber 2021), https://law.marquette.edu/poll/wpcontent/uploads/2021/11/MLSPSC05Toplines_CourtItems.html.

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dramatically.28 Term limits would force Justices to retire before the onset of mental decline and would help protect the Court from illness or injury, as younger Justices would largely be more resistant to injury and illness. Additionally, the American people would have more of a say in the Court's makeup and decisions. The Supreme Court is filled by the representatives of the people. Thus, more frequent retirements and confirmations give the public more opportunities to appoint justices who represent their ideals of legal philosophies. Lastly, by introducing more opportunities for appointments, it is plausible that the increased politicization surrounding the appointment of justices would dissipate, restoring the prestige and legitimacy of the Court. Each president would have two opportunities to appoint justices every two years, making each confirmation less important and contentious. In his article for the Harvard Journal of Law and Public Policy, Boston University Professor Farnsworth mounts a defense of the life tenure for Supreme Court Justices. Farnsworth attacks the proposal in three major ways. He notes that there will inevitably be a political loser from such a policy, making it inherently partisan, and thinks that who sits on the Supreme Court is not a priority for most voters.29 Farnsworth also looks to discredit the claims that the appointment process is especially partisan and divisive, a claim that has not aged particularly well since its publishing in 2006. One of the most important aspects of the Supreme Court is the idea of judicial independence. Justice’s life-long terms ensure they are free from political forces and public opinion. This principle is meant to allow justices to rule fairly and impartially, without the fear that their decision could potentially jeopardize their livelihood. Critics of term limits have argued that changes to this system can damage judicial independence and public

28 Roger C. Cramton & Paul D. Carrington, “A Rise in ‘Mental Decrepitude’ on the Court” in Reforming the Court 41, (2006). 29 Ward Farnsworth, The Ideological Stakes of Eliminating Life Tenure, 29 Harv. J.L. & Pub. Pol'y. (2006).

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confidence in the Court. However, proposals that guarantee long terms, lifetime salaries, and preclude judges from serving multiple terms, such as that outlined by Calabresi and Lindgren, effectively maintain judicial independence. Justices have nothing to gain or lose by pandering to politicians or the public, just as under the current system of life-long appointments. Supporters of life-long tenure have also cautioned that the Court's balance could easily be entirely swung by a single president.30 A two-term president would be able to nominate four justices to the Court and would have a large influence over its makeup. However, the assertion that a president might always be able to swing the Court is not rooted in historical fact. Some of the most liberal Justices on the Court were appointed by Republicans, while some of the most Conservative were appointed by conservatives. This makes it more likely for the Court to have a diverse range of voices, regardless of the president. Additionally, one could argue that it is beneficial for the American public, through the president, to be able to dictate the makeup of the Court. The president, in theory, represents the views of the majority of Americans and thus can create a Court that reflects American values at the time. Additional arguments against the proposal are that it might diminish the Court’s prestige and those retiringJustices might look to go out with a dramatic splash. Some argue that constant turnover in the Court might reduce its prestige. However, 18-year terms are still longer than the historical average, and the essential role of the Court remains unchanged, preserving its high status and prestige. Additionally, it is reasonable to assume that Justices retiring because of term limits would act similarly to those retiring under the current rules. Justices seem to act normally when retiring, and we haven’t seen

30 Stephen G. Calabresi & James Lindgren at 845.

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Justices attempting to make large political statements before their retirement.31

III. THE SUPREME COURT LOTTERY

Daniel Epps and Ganesh Sitaraman propose a so-called “Supreme Court Lottery” system in the Yale Law Journal.32 It draws from the proposal outlined byJohn O. McGinnis, Justice Without Justice. Much of the research and legal support for this proposal was conducted by Epps and Sitaraman. The Supreme Court Lottery would replace the current system of nine Supreme Court Justices with around 180 Justices whocomprise the federal court of appeals. These 180 justices would make up the pool of potential justices of which a bench of 9 would be created, at random, to hear each case. To ensure a relatively balanced bench, the 9-judge bench would have no more than five justices appointed by a president of one party. In other words, out of the nine justices, a maximum of five could be appointed by either a Republican or Democratic president, ensuring some level of balance. The proposal suggests that panels would serve2-week rotations, ensuring the Court is rotated often while making it impossible for lawyers to time their suits to target a specific bench over another. A 6-3 supermajority would be required to rule a federal statute unconstitutional.33 Under the current system, Justices are incentivized to time their retirements to ensure they are replaced by like-minded individuals, and a panel of 9 justices has a drastic influence over the lives of millions. Individual justices can impose their own legal or philosophical ideologies throughout their decades of service and often, a single swing vote can decide the outcome

31 Id. at 849-851.

32 Daniel Epps & Ganesh Sitaraman 33 Id. at 181-182.

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of cases. The lottery system looks to address these issues by randomizing the makeup of the Court. Epps and Sitaraman argue that their proposal could be implemented through statute instead of a constitutional amendment. Like expanding the Supreme Court, as discussed earlier, Justices could be added to the Court without changes to the Constitution. While some argue that the size of the Court is a settlednorm, it is largely agreed upon that Congress has the power to expand the Court.34 Under the proposal, the Court would be expanded to 180 justices who would serve dually as “associate justices” of the Supreme Court as well as on the Federal Appeals Court. Epps and Sitaraman defend the constitutionality of their proposal from potential attacks. Firstly, they argue that the dual appointment of the Justices would be constitutional because Supreme Court Justices have served multiple posts in the past. Early Supreme Court justices traveled the country, hearing cases within their respective circuits.35 Article III of the Constitution implicitly notes that decisions are to be made by a simple majority. This may challenge the proposal’s requirement for a supermajority for deciding the outcome of federal statutes. However, supermajorities exist amongst state courts (Nebraska and North Dakota) without constitutional challenge, supporting the constitutionality of the proposal.36 The introduction of a lottery system to the Supreme Court would drastically shake up the makeup of an important American institution. The proposal would help reduce partisanship in the Court and encourage deference to the other branches of government. Partisanship in the Court can

34 Michael Stokes Paulsen, Checking the Court (2016). 10 NYU Journal of Law & Liberty 18 (2016), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 1608.

35 Early Supreme Court Justices Ride the Circuit, National Park Service, https://www.nps.gov/articles/000/riding-circuit.htm. (last visited April 15, 2022). 36 Daniel Epps & Ganesh Sitaraman at 192.

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be reduced as the stakes of each nomination are drastically reduced.37 While it is plausible that nominations to the federal appeals courts would become more contentious due to their increased importance, it's logical to assume that each nomination would be much less politicized and contentious compared to the status quo. This benefits the Court by increasing the Court’s legitimacy by removing politics from the equation and might make the Court seem more impartial in the eyes of the public. Balancing the benches would ensure a relatively equal balance of power on each Court, and quick rotations of judges would prevent Justices from promoting their political agendas. Federal appeals court justices are more likely to defer to precedent or the other branches of government than Supreme Court Justices.38 With experience in the federal appeals courts and an expanded number of justices, justices might be less likely to develop popular followings and might be less willing to make legal splashes. The Court would hear fewer ideological cases, and less radical shifts would occur as the balance of power shifts.39 No one justice would be able to push forward a personal agenda or get overly involved in a specific case or issue. Critics of the proposal could challenge the constitutionality of such a proposal. Additionally, the plan does little to address issues of aging judges and might make individual Justices less accountable to the American public. Additionally, the Court would be less responsive to the voting swings of the public.

As life expectancy continues to rise, justices can continue to serve longer and longer terms. Mentally inadequate justices could face less scrutiny as members of a larger group. This could result in a gradual weakening of the pool of judges and undermine public confidence in the system. This issue

37 Id. at 184. 38 John O. McGinnis, Justice Without Justices, University of Minnesota Law School Scholarship Repository (1999), https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1541&context=concomm. 39 Daniel Epps & Ganesh Sitaraman at 184.

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might be addressed by introducing term limits, as discussed earlier, or a mandatory retirement age, a proposal that raises its own issues. With only nine Justices, one administration could dramatically influence the Court by appointing multiple justices. This power reflects the desire of the American people who voted the president in power, something that might become problematic given the rise of more restrictive voting laws in many states and allows the public to shape the Court. However, this might also be harmful. The proposal dilutes the power of the public and one president and makes the Court system more resistant to radical swings. This stability in the Court could benefit its public perception and its long-term viability in an increasingly divided time.

IV. THE BALANCED BENCH

In their article, Epps and Sitaraman outline another plan, the "balanced bench." The proposal would create a 15-judge Supreme Court comprised of five democratic justices, five republican justices, and five justices agreed upon unanimously by the ten party-appointed judges. The five visiting justices would serve one-year terms on the Court and are selected from a pool of federal judges. The balanced bench would make each appointment less important and divisive as both of the major parties are guaranteed five affiliated justicesno matter the president.40 The proposal would guarantee a moderate bench and necessitate cooperation amongst the Republicansand Democrats. Without compromise between the ten politically affiliated justices, the Court can’t function. The proposal also attempts to restore the Court’s legitimacy in the eyes of the public. By balancing the Court, decisions won't be viewed as purely political as decisions aren’t based entirely on party affiliation.

40 Daniel Epps & Ganesh Sitaraman at 196.

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The Balanced Court proposal shares similar challenges to its constitutionality as the Supreme Court Lottery Proposal. As discussed earlier, a judge could likely serve on both the SupremeCourt as well as a lower court at the same time. See the Supreme Court Lottery Section for more details. Another constitutional challenge rests upon the question of whether or not a partisan requirement can be imposed on the Supreme Court.41 Additionally, even if the proposal passes, who is to define political affiliation? What is to stop a judge from self-identifying as an independent or completely reversing their political label for the benefit of the party? Epps and Sitaraman give an example that illustrates this point, writing that in the early 2000s, two Republican members of Congress identified as Independents to fill seats on the US Commission of Civil Rights under George W. Bush.40 This allowed the Republicans to skirt quotas and rules concerning the number of party members on specific congressional committees. Even if the proposal was completely legal, it is hard to imagine widespread support in an increasingly divided nation. Both liberals and conservatives would likely have difficulty compromising their abilities to drastically shift US policy. A balanced bench would likely not outlaw abortion based upon precedent, an important issue for many on the right. On the other side, a balanced Court might be less likely to rule in favor of incredibly liberal policies such as a single-payer healthcare system. Creating a more politically balanced Court would make closer, more consensus-based decisions. Eric Segal, a law professor at Georgia State, argues for a completely balanced bench as it wouldn’t allowa group of five justices to push their ideologies over decades and would reduce the importance of a justice’s death or retirement to the political makeup of the Court.42 This theory was backed in reality. The Court’s October 2016 term, in which the

41 Id. at 203.

42 Eric J. Segall Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 Pepp. L. Rev. 547 (2018).

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Court was down a justice balancing it 4-4, saw the most consensus in over 70 years.43

The proposal would also drastically decrease partisan fighting surrounding appointments. As discussed in other sections, with either the expansion or balancing of the Court, the appointments become less consequential or pointless to fight over. This would benefit the Court with increased legitimacy in the public eye. Additionally, the proposal would favor moderate views of the law. Neither incredibly liberal nor conservative interpretations of the law would be viable as moderate justices would have the deciding votes on politically decisive issues. This is music to moderate ears but may seem like less good news to those who want to see either drastic liberal change or hold more conservative views. Introducing a rotating panel of neutral judges also lessens the celebrity status of being a Supreme Court justice. Ideally, thesenew justices would be relatively unknown and wouldn’t have time to develop cults of personality that surround many of today’sJustices.44 New Justices also introduce new opinions and perspectives to the Court that lifetime Supreme Court Justices might be lacking. Many proposals focus on divorcing politics from the Court; however, the Balance Court proposal does the opposite and makes politics a permanent fixture of the court. Many critics oppose introducing politics to the court of law and desire justices that are impartial and loyal to the law. However, in the current status quo, politics is no doubt baked into the Supreme Court. The Balanced Court proposal recognizes and addresses this issue as it is difficult or impossible to remove politics from today's Supreme Court completely. Another criticism of the proposal is that it does not respond to the political trends or changesin the nation. If, for example, the democratic party

43 Daniel Epps & Ganesh Sitaraman at 197. 44 Id. at 195.

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wins the presidency for five terms in a row, shouldn’t the Court reflect the popular support for more liberal policies and justices? Epps and Sitaraman argue that even if one political party strings together multiple victories, the nation's politics may be incredibly close to 50/50.45 Additionally, the proposal might mitigate the effects of strict voting legislation that would disenfranchise or limit the ability of many to vote. The proposal would also allow the winning party to appoint justices to the federal appeals courts, the justices who make up the pool of non-party affiliated judges. Critics of the proposal point to its inability to respond to dramatic shifts in public sentiment. If the country rapidly becomes more liberal and a vast majority of people support, say, the implementation of a single-payer healthcare system, a balanced Court might prevent the Court from accurately representing the desire of the American people. This is similar to the issue discussed previously.

CONCLUSION

The current system of the Supreme Court is deeply infused with politics and is losing legitimacy inthe eyes of the public. Without meaningful structural change, the Court will continue to suffer from its current ailments and will likely not recover organically. While there is no silver bullet that will solve all of its problems, there exists a multitude of well-developed proposals that would significantly modernize the Court and strengthen it for the future. Hopefully, a proposal or pieces of multiple proposals can garner widespread bipartisan support to ensure that the Court can continue its role in our democracy and in ensuring the rule of law in America. Without real change, even an optimist would find it difficult to be hopeful for the future of the Court.

45 Daniel Epps & Ganesh Sitaraman at 199.

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