Opinion | Supreme Court warrants constitutive reform
October 22, 2020
The Constitution and the bodies governing it are not set in stone.
America’s constitutional government and its branches are driven to always strive toward a more perfect union, but when a branch fails to meet the expectations of a more perfect union, reform is foreseen as a remedy for America to progress on its path.
In the case of the Supreme Court, the passing of an 87-year-old justice should not rock the constitutional foundation of America to its core. Similarly, having so much hinge on what ideology the court’s majority court holds is no condition under which a government and its courts can continue to function.
Following the tragic death of Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump and Republican leadership have fast-tracked their choice of Judge Amy Coney Barrett en route to fill the missing seat before election day.
Trump, per usual fashion, has said the quiet part loud in publicly proclaiming the late justice’s seat must be filled contingent on any pending disputes following the election.
Responding to this flagrant use of power by Trump, Democrats, led by Joe Biden, have repeatedly exclaimed all options are on the table pending a potential confirmation of Judge Barrett.
This abuse of power especially hits home for Democrats who — still reeling over the fatal Bush v. Gore — are restless over the prospect of having three justices who also served on the Bush legal team: Chief Justice John Roberts, Justice Brett Kavanaugh and likely Justice Amy Coney Barrett.
It is abysmal America has reached such a high level of concern over court manipulation that apprehensions not only threaten the legitimacy of the nation’s courts, but also the integrity of decisive elections are at stake with who “controls” the Supreme Court.
The Supreme Court of the United States should not be serving the political interests of either political wing. It ideally serves as the living interests of the Constitution and to be the ultimate legal check in this democracy, not to act either as a cheerleader or roadblock for any given political party in power.
To combat the Supreme Court’s politicization, some have found solace in the short-sighted prospect of court-packing: adding judges to a given court who will be trusted not to block certain legislation or executive actions.
Dating back to 1937 following President Franklin D. Roosevelt’s landslide election, FDR proposed his own Supreme Court-packing to counter his conflicting SCOTUS. FDR’s plan met near-instantaneous backlash due to an inherent fear of a spiraling sequence of partisan court-packing. The lesson learned from FDR was that court-packing was not a viable solution and it remains true to this day. Still, the Supreme Court is not an untouchable institution.
Reforming the court is not a radical idea, and it should not be a partisan idea. Voices from both sides of the aisle have occasionally tossed in their thoughts as to whether the court warrants repair, from Sen. Ted Cruz who supported shrinking the number of justices to combat a potential Hillary Clinton presidency, to Mayor Pete Buttigieg’s court neutralization approach.
Former Democratic candidate Buttigieg held Supreme Court reform front and center within his campaign. Behind Buttigieg’s proposed plan was to strategically expand the court from nine to 15 justices: five Republicans, five Democrats and five “apolitical” determined by the previous 10. Buttigieg justly foresaw the court favoring no political agenda as an imperative step in the right direction.
University of Chicago law professor Ryan D. Doerfler and Yale University law professor Samuel Moyn today recognize the Supreme Court has less of a numbers issue and more of a power issue. Both assert in their piece for The Atlantic, “Reform the Court, but Don’t Pack It,” that, “the problem is not who serves on the Supreme Court but what power it has.”
Doerfler and Moyn cite a 1920s progressive proposal as their suggested reform. This enduring proposal would “require six or seven justices (rather than the current five) to agree before declaring a federal statute unconstitutional functions similarly.” In creating a supermajority stipulation, the Supreme Court is therefore forced to cooperate in hopes to wage power, rather than dramatically set precedents by simple 5-4 majorities.
By also creating a supermajority prerequisite for declaring a statute unconstitutional, more power is geared to the appropriate political bodies: the legislative and executive branches.
Subscribing to Doerfler and Moyn’s reform is not a hard pill to swallow. Through entrusting the Supreme Court to form a supermajority in order to apply sweeping powers, the Supreme Court can avoid encroaching itself in political matters that should be left for Congress and the President to deliberate over.
The Supreme Court should not have a say in political matters. Its main purpose is to deduce legal conclusions regarding certain constitutional ambiguities. Furthermore, the Supreme Court threatens its legitimacy when weighing in on matters for whichit has no constitutional backing — especially in the business of elections.
Similar to how Congress and the president are accountable to those who elect them, the Supreme Court is beholden to the constitutional framework their positions occupy. Not reforming this robust court is a crime to the path toward a more perfect union, and if there is any hope America will avoid reaching its brokenness as it has of late, the highest court in all the land must face its purpose and reform.
Nathaniel is a sophomore in LAS.