With 'Crisis of Legitimacy,' Rethinking the Supreme Court

      The transformation of the Supreme Court after the seating of two conservative justices in bitterly fought confirmation battles has generated anguished talks on the political left about possible reforms to depoliticize the Court. Despite reformers' earnest attempts, however, the smorgasbord of ideas discussed at a program sponsored by the liberal American Constitution Society (ACS) last week [Oct. 25] seem unlikely to be adopted or, even if adopted, to reduce the level of political conflict currently surrounding the Court.
      Even before Justice Brett Kavanaugh's historically narrow two-vote confirmation, public confidence in the Supreme Court was sagging to the point that Jeffrey Rosen, director of the National Constitution Center, asked whether the Court is facing a "crisis of legitimacy." Rosen noted in a recent podcast that a Gallup survey in early July found only 37 percent of respondents expressing high confidence in the Court: that figure has been below 40 percent for a decade, but traditionally higher all the way back to the early 1970s.
      The proposals for "reforming the Court" discussed at the ACS event by three longtime law professors and one veteran of the political world range from the simple and straightforward to complex and indirect. As one example of the former, Amanda Frost, a professor at American University's Washington College of Law, suggested requiring more than a one-vote margin to overturn a law passed by Congress or a state legislature. This longtime Court watcher can recall that idea from as far back as the 1950s, but it has never advanced beyond idle political science-type talk. One possible variation could be to require a supermajority to overturn a precedent
      By way of a more complicated reform, Ganesh Sitaraman, a professor at Vanderbilt Law School, pointed to proposals for a radical change in selecting the Supreme Court's personnel. These proposals envision a random lottery among federal appeals court judges to select the judges who would comprise the "one Supreme Court" specified in the Constitution. Another, more complex proposal envisions a Court deliberately engineered to maintain a partisan balance, with five justices appointed by Republican presidents, five by Democratic presidents, and five additional members selected with mutual agreement by both blocs. Sitaraman saw the benefit of either of these proposals as reducing the "cult of personality" around any individual justice.
      The panelists largely steered clear of two of the simplest and currently most often discussed reforms: term limits and changing the size of the Court. Some on the political left have been talking up the possibility of "packing the Court" in effect as a response to the Republicans' obstruction of President Obama's nomination of Merrick Garland in Obama's final year in the White House.
      Frost set the tone for the ACS panel by saying early on that she was "no fan" of either term limits or packing the Court. In any event, Democrats would pursue a change in the size of the Court only after hypothetically gaining control of both Congress and the White House after the 2020 elections. And, as evident political retaliation, a move to enlarge the Court to enable a Democratic president to appoint additional justices to change the Court's ideological balance of power moves in exactly the opposite direction of seeking to depoliticize the Court.
      Term limits for the justices have a bipartisan pedigree of sorts: law professors supporting the idea include some from the left and some from the right, for example, Steven Calabresi, co-founder of the Federalist Society. Supporters argue that fixed 18-year limits for active service on the Court would reduce the political stakes on any individual nomination by ensuring another vacancy two years afterward. In his remarks, however, Sitaraman suggested instead that term limits could make political problems worse. "It would mean that every election would be about the Supreme Court," he said.
      With structural changes such as these under consideration, some Court watchers see the politicization of the Court as the inevitable result of what many on both the right and the left consider the Court's outsized role in setting legal policy on contentious. "You need to depower the Court," the University of Chicago law professor Aziz Huq remarked at the ACS panel.
      David Kaplan, a longtime journalist and author of the new book The Most Dangerous Branch , laments what he, as a self-identified liberal, calls the Court's "aggrandizement of power" stretching from Roe v. Wade through Bush v. Gore and the Roberts Court. Barry McDonald, a professor at the generally conservative Pepperdine Law School, wrote in a New York Times op-ed that the Court has "lost sight of its limited role and the principle of judicial neutrality."
      At the ACS panel, Huq blamed liberals and progressives for relying too much on the courts. Yet in the past decade conservatives have also been quick to resort to courts. Senate Republican leader Mitch McConnell was in fact the named plaintiff in the first, unsuccessful attempt to gut the McCain-Feingold campaign finance reform. That effort eventually succeeded in the Citizens United case. Gun rights advocates made no serious attempt to repeal the District of Columbia's handgun ban before the Second Amendment challenge that ended with the Heller decision in 2008.
      However improbable the proposals for structural changes may be, it may be even more unlikely to rein in the Court's overarching role in legal and constitutional policy. In a system with a written Constitution, a written Bill of Rights, and a history of judicial review, rights-claiming parties will eventually find their way to the highest Court and the justices drawn into political conflict however they rule.