Jeffrey Rosen: John Roberts is just who the Supreme Court needed
There are two basic types of reform. One type adjusts the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office. The second kind disempowers the institution itself—removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes. As we argue in a new paper, this second brand of reform is best. The first sort of fix may serve the Democrats in the short term, but at the price of naked partisanship and possible blowback, while the second facilitates progressive ends and, just as important, reinvigorates American democracy.
The current wave of reform efforts first emerged when Judge Merrick Garland was denied confirmation at the end of President Barack Obama’s term because of Senate Majority Leader Mitch McConnell’s “hardball” tactics, and swelled to a clamor after Brett Kavanaugh’s divisive and hard-fought confirmation provided a more reliable conservative majority on the Supreme Court than before. During the Democratic primary last year and this past winter, the topic gained more traction than at any time in almost a century. But the debate has been for the most part stuck, as the ascendancy of court packing has screened out the broader range of options and the possibility of comparing and contrasting them.
For reformers advocating the first strategy, the Supreme Court has been lost to Republicans and the goal is to take it back. The revival of New Deal President Franklin Roosevelt’s 1937 proposal to “pack the courts,” for example, simply accepts that federal courts wield tremendous policy-making authority. The goal is thus to wrest partisan control away from conservatives, either in order to claw back ill-gotten gains, or because the practical outcomes of conservative judging are viewed as bad.
Similarly, the centrist former presidential candidate Pete Buttigieg endorsed a proposal during the Democratic primaries for the Supreme Court to consist of five Democrats, five Republicans, and five “apolitical” justices. The purpose of this reform is to make the Court (seem) less ideological, structuring it to produce compromise outcomes and rescuing it from its unfortunate slide into “politicization.” Such wonkish plans, however, merely assume that the Court should and will continue to sit as an unelected “super-legislature.” Such a body cannot be apolitical—and such reforms only hide the exercise of its power better.
David A. Graham: The Democrats discover the Supreme Court
This does not mean that all attempts to reform the Supreme Court through personnel management are created equal. Adding justices works differently than striving for a moderate Court that reflects the current partisan split in Washington. While the former would, ideally, help advance a progressive agenda, the latter aims at restoring the Supreme Court’s “legitimacy” as a nonpartisan—which is to say, ideologically moderate—actor. Both, however, take as a given that the Court will continue to settle many of American society’s most important and most controversial political questions. The goal of these reforms is to change the attitudes of those on the bench, in the hope of getting either more progressive or more “centrist” answers.