To reform the US court system, court-packing is not the only solution
By: Quynh-Anh Nguyen
Tags: Supreme Court, Court Reform, Judicial Review, Court Packing

Presidential candidate Joe Biden said earlier in an interview that he would have a commission to study possible solutions to reform the court system. These days, we hear a lot about court reforming, and the most discussed solution is to expand the Supreme Court, i.e. court-packing. President Franklin Roosevelt attempted to pack the Court with his Judicial Procedures Reform Bill in 1937. Biden so far has refused to give his opinion on court-packing; however in the past, he consistently denounced this idea, explaining that it would create an endless cycle of court-packing from both the Democratic and the Republican parties. His reasoning is, indeed, a very valid point. The court system has been politicalized. In the past few years, President Trump together with Senator McConnell have filled the court system, from the Supreme Court to federal courts to appeal courts, with many conservative judges, see reports at NPR, The Philadelphia Inquirer, The Hill, The Conversation, The Newyorker, and Pew Research Center. Judge appointment is lifetime; thus, even if President Trump and Senator McConnell are not re-elected, we will still see their ideological impacts for many decades to come.

One can argue they are exercising their constitutional power to appoint judges. That is true; however, in reality, McConnell used many tactics to block judge nominations from President Obama at all judicial levels. Many judges were supposed to be filled by President Obama, but those seats were kept vacant and then appointed later by President Trump. Moreover, the judicial branch has become much more powerful than it is supposed to be; meanwhile, the legislative branch is not properly functioning. The Congress does not work on passing bills as often; more time is spent on hearing and confirming judges. Also, judge nomination is merely for power gain and re-election purposes. If you are a single-issue vote, the best issue to consider is the court; listen to these videos/podcasts from The Rising, The Embedded, The Newyorker Politics and More.

A study from the Brooking Institution analyzes possible solutions to reform the court system, see a Vietnamese translation here. One of the potential solutions is to impose a time limit on the court. When a judge is appointed, the position is for life. On the average, the median length of serving time since 1981 is 26 years. A bipartisan group of lawyers and scholars has started pushing for this ideal since 2009. They proposed to limit the court term to 18 years, and each judge on the Supreme Court will have the starting date 2 years apart. This guarantees that a nomination will occur every 2 years, and each president can get to appoint 2 judges. The caveat is that it may still create chaos if a swing judge’s 18-year term expires right around election year. Essentially, the concerning problem does not lie in the number of judges or ideology representation of judges, but rather in the growing power of the court as well as the political fight associated with judge nomination. To solve these issues, progressive and conservative scholars have offered other approaches.

The long fight of progressives against the powerful court

A Supreme Court nomination is usually accompanied by big money to lobby the candidate through confirmation hearings. For instance, the Koch foundation and the Judicial Crisis Network have launched a multi million dollar campaign to support Judge Barrett confirmation. In the past, the Judicial Crisis Network also supported the nomination of Judge Gorsuch and Judge Kavanaugh. While the nine judges in the Supreme Court can be different on social issues, they, most of the time, agree on corporate power and antitrust issues. In fact, data has shown that big businesses are more likely to win at the Supreme Court. Since socialists and progressives want to advance the pro-worker agenda, they have suggested disempowering the court system by reconstructing its power structure.

Progressives have long proposed that Congress should strip judicial body (jurisdiction stripping) from hearing controversial cases such as abortion, gun control, and affirmative action. The stripping measure can happen at the Supreme Court level and even at lower court level. Under this action, controversial issues will be placed in the hands of the legislative and the executive branches; hence, decisions will largely depend on the latest election. On the other hand, judicial review is the process in which a legislative bill or an executive action can be subjected to review by the court, and the court can declare it unconstitutional. This authority is not explicitly stated in the Constitution, but it is used in practice. Thus, there have been proposals to use super-majority rule when it comes to judicial review. The courts can still hear controversial cases, but it will require six or seven votes, instead of the current five, to declare something unconstitutional. Another solution is that Congress can potentially override a court’s decision (legislative override) in case the court has previously declared something unconstitutional. These reforms will help democratize the court by transferring its authority to other accountable branches of the government without partisan consequences. Disempowering the court can also help push progressive policies.

Conservatives and judicial supremacy

If there is anything in common between conservatives and progressives, it is the fact that they are concerned with how powerful the court system has become over the years. Conservatives argue that even though judicial review is implicitly granted from the Constitution, judicial supremacy (the idea in which the court, above the other two government branches, is the ultimate interpreter of the Constitution) is anti-constitutional and should be rejected. However, this idea is widely accepted these days. The public as well as the other two government branches tend to treat court decisions as final. It started with the 1803 Marbury v. Madison case in which the Supreme Court inferred from the Constitution that the judiciary body has the authority to invalidate the legislative and the executive bodies. This supposed-to-be judicial review has been mistakenly bounded together with the notion of judicial supremacy. According to conservatives, when we grant the court that ultimate power, we indeed live in a state that is ruled by a few elites, which is neither a republic nor a democratic regime. Nevertheless, there are successful cases against court’s decisions. A recent example is the 1983 INS v. Chadha case in which the Supreme Court deemed legislative vetoes unconstitutional. The Congress disregarded the ruling and indeed enacted over 400 legislative vetoes over the next thirteen years. The most famous example against the power of the Supreme Court is the story of Abraham Lincoln.

The case of Abraham Lincoln against the Supreme Court

It is noteworthy that many socialists and conservatives write about Lincoln as an example of how to challenge the power of the Supreme Court. In 1857 Dred Scott case, the Supreme Court declared that black Americans had no rights as citizens, and it was unconstitutional for Congress to ban slavery in federal lands. Instead of court-packing, the Republican party planned to restructure the power dynamics of the Supreme Court by various techniques. In 1858, William Seward introduced a bill in the Senate to reform the Court but it went nowhere. In the same year, Abraham Lincoln delivered a speech for his Senate campaign, condemning the Court for supporting slavery. The New York Tribune, the Republican newspaper at the time, also criticized the Court for being pro-slavery

Further, abolitionists from the Republican Party argued that while the Supreme Court had the power to decide on cases, it did not have the authority to “settle larger political disputes over the meaning of the Constitution.” In other words, Lincoln and other Republicans effectively attacked the idea of judicial supremacy. Lincoln believed that courts in general could “violate the Constitution and even undermine constitutional government” with judicial supremacy. In his inaugural speech in 1861, Lincoln strongly stated his opinion against judicial supremacy, articulating that “the people will have ceased to be their own rulers, […] practically resigned their government into the hands of that eminent tribunal.” As a president, Lincoln continued to reject the ruling of the 1857 Dred Scott case by the Supreme Court. For instance, he signed a bill in 1862 to ban slavery in federal lands; he also issued different documents to free black people. In essence, it is hard to imagine any anti-slavery policy being pushed through without the direct attack on the Supreme Court as done by Lincoln and his Republican party.

In conclusion, both progressives and conservatives believe that it is more important to make the court system less powerful than to fill the court with different ideologies. History is on their side with the case of Abraham Lincoln challenging the Supreme Court in order to advance progressive ideas at the time. Thus, Biden is right to have a commission of scholars to study different ways to reform the court instead of going with court-packing as the ultimate answer.