The following editorial appears on Bloomberg Opinion.
Amy Coney Barrett’s appointment to the Supreme Court was achieved over furious Democratic objections, in what might be the closing days of both Donald Trump’s presidency and Republican control of the Senate. Seen by critics as improper and even illegitimate, it could have a lasting impact. It cements a 6-3 conservative majority at the top of the judicial branch of government - an outcome that could have profound consequences for public policy in the coming years.
Finding this hard to accept, many Democrats are wondering what to do next. If they prevail in the elections already under way, there’s talk of “packing the court,” or expanding the number of justices to reverse the partisan balance. Former Vice President Joe Biden has been pressed to say whether he’d lead such an effort, but hasn’t committed himself. In the past, he’s argued that packing the court would be dangerous. Under pressure to say something different, last week he proposed a bipartisan commission to look into possible reforms.
This idea isn’t much liked. Many on the left see it as a cop-out, and many on the right as a threat, lightly veiled for tactical purposes. In fact, Biden is correct. The existing norms are failing and do need attention, but the answer certainly isn’t packing the court. If anything demands cross-party cooperation to avoid making matters worse, it’s this.
The court is still highly regarded, but increasingly at risk of being seen by citizens as a political player. This is partly the fault of its justices, who’ve sometimes let themselves be cast in this role. But it’s mostly the fault of Congress, which frequently opts to be paralyzed, in effect delegating legislative responsibilities to the judicial branch.
The future of the Affordable Care Act, a main point of contention in the Barrett nomination, is just such a case. It’s absurd that the future of comprehensive health-care reform should, thanks to the negligence of the other two branches, turn on legal technicalities. What’s worse is the fear that, in ruling on them, the court will split along partisan lines. If this keeps up, the country’s respect for the court, and with it the rule of law, is likely to erode.
Barrett’s appointment is another step in this dangerous direction. To be clear, the new justice is eminently qualified, and performed impressively in her confirmation hearings. Moreover, it would be foolish to take her future opinions for granted. (Previous justices have often disappointed their sponsors.) Nonetheless, she’s an undeniable conservative, replacing an undeniable liberal, appointed at 48 years of age to a lifetime position, even as the country seems poised to elect a Democratic president for the third time in 12 years. Because of these circumstances, the manner of her appointment adds greatly to the court’s political taint.
Yet packing the court would only compound the problem. If a Democratic president and Senate added progressive justices to assure their side of a majority, the court would become an outright instrument of the party in power. If and when those political offices switched back, there’d be another round of packing. Go down this road, and the collapse of the public’s regard for the court and the law would be assured. Biden evidently understands this, and so do many members of Congress in both parties - so packing the court would, one hopes, be a lot harder to pull off than its advocates maintain.
Oddly enough, the Constitution doesn’t forbid packing the court, despite the threat that doing so would pose to respect for the law. But changes that would push the other way, reducing the political pressure and hence strengthening the court, do raise constitutional questions.
For instance, one idea that’s attracted attention is to limit terms on the court to 18 years, and allow for two appointments per presidential term. After a transitional period, the court would have nine members, as now, but the appointments process would be more regular and therefore less fraught, and justices would no longer have reason to time their retirement to give the power of appointment to a president they prefer. However, the Constitution provides that justices serve “during good behavior,” which some legal scholars interpret to mean life tenure. Granting “senior status” to justices at the end of their term, allowing them to stay on the federal bench and sit on lower courts, might offer a solution and pass constitutional muster.
Biden said Monday that he didn’t favor changing lifetime appointment but was open to the possibility of rotating justices “from one court to another court.” His mind was not made up, he said, and he’d see what his commission would recommend.
The main thing is to recognize the issue and for both parties to grasp their mutual interest in addressing it. If each side looks at the court chiefly as a way to seize political advantage, rather than to uphold the rule of law, then everybody loses - the courts, the president, Congress and above all the country’s citizens. Biden is correct: Understand the danger, study plausible solutions, and be sure to build broad support for change.