Reflections on the Supreme Court, the Senate, and Sandy Levinson

Guest Blogger

This post was prepared for a roundtable on Reforming the Supreme Court of the United States, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Vicki C. Jackson[1]

Professor Levinson has been using his powerful scholarly voice for years now to call our attention to the increasingly hard to justify mal-distribution of the Senate and the way its democratic deficits are hard-wired into our present constitutional architecture.[2] This structural defect is related to the question of Supreme Court reform. For the disjunction between popular voting and presidential electoral success, which arises because of the mal-distribution of the Senate and its carry-forward to the number of votes in the Electoral College, contributes to the present unhappy situation, as does the malapportioned Senate’s role in the confirmation process.

The U.S. stands virtually alone, among constitutional democracies with well-established judicial review by independent courts, in providing neither for a retirement age nor for a limited term in office for its high court justices. Had one looked at this issue in 1921, the United States would have had company: At that time, Australia and Canada, countries that, like the United States, were influenced by the British tradition, provided judges with indefinite tenure during good behavior.^[3] However, each of these countries amended their constitutions and adopted mandatory retirement ages for their federal judges later in the 20^th century – 70 in Australia, 75 in Canada. All but one of the U.S. states now have term limits, or a mandatory retirement age, or both, for their high court judges.^[4] During the New Deal period, and again in the 1950s, serious proposals were made (though not acted upon) for a constitutional amendment creating a retirement age for federal judges. Recently, norms about Senate confirmation have broken, increasing the risks of a confirmation process perceived as systematically skewing the Court and diminishing its legitimacy. Average tenures of the justices are increasing; and the haphazard nature of when vacancies occur have resulted in such powerfully important anomalies as President Carter having no appointments during his four-year term and President Trump (who lost the nationwide popular vote) having 3 – one-third of the Court – during his one four-year term.

Against this background, I suggest that the time has come to seriously take up proposals to limit the indefinite tenures of Supreme Court justices. Fifteen years ago I was disinclined to support proposed changes to tenure “during good behavior,” a provision that had so well secured an independent federal judiciary.^[5] This past year I urged the Presidential Commission on the Supreme Court of the United States to take very seriously the benefits of some reform and to try to seize the moment to build a consensus in favor of change towards a more sensible system of appointment and tenure for Supreme Court Justices. The Commission did not do so but I hope a coalition will emerge to act.

The growing effects of the Senate’s counter-majoritarian character, together with recent breaches of political norms and conventions about Supreme Court appointments, are deeply concerning. Although recent abuses of the confirmation process – against the backdrop of the counter-majoritarian effects of the Senate – provide temptations to “Court-packing.” But sheer partisan court-packing bears high risks of further polarization, instability and delegitimation. Less partisan efforts to spread out appointments should be pursued, that will not dissolve the counter-majoritarian character of the Senate but help mitigate the way our haphazard and contingent tenure system for Supreme Court justices can magnify the counter-majoritarian effects of the Senate and the electoral college.

Elsewhere I discuss the potential benefits of mandatory retirement ages and 18-year single term approaches.[6] Here I discuss an alternative approach that Congress could constitutionally effectuate by statute and that might avoid at least some of the risks of being viewed as a naked partisan power grab inviting further partisan power grabs back.

Smoothing Out Appointments Though Conditional Changes in Court Size: One of the most compelling arguments for change in Supreme Court tenure derives from the very uneven distribution of opportunities for Presidents, elected at different times and from different parties, to make appointments. As the Constitution has become more oriented to the value of equal voting and equal representation over time, the importance of having democratically legitimate inputs to the Court has increased. Yet the current system makes vacancies depend on contingent, random events, and has the potential (however much it is or is not used) for sitting justices to decide which president chooses their replacement.

Given Congress’s power to change the numbers of justices on the Court, possibilities (other than the frequently discussed 18-year staggered terms idea) could be considered, which could be implemented by statute. Specifically, Congress could provide for fluctuating Court membership, ^[7] or a “decoupling” of appointments from vacancies,^[8] by guaranteeing one, or two, presidential appointments each four-year term, while letting the overall numbers on the Court fluctuate. Such approaches would spread out opportunities for appointment, albeit not as rigorously as the 18-year term limit proposal. A modest variation, similar to Terri Peretti’s,^[9] would reflect the desirability that, in each four-year Presidential term, at least one appointment to the Court be made.^[10] 

In the last 45 years, there have been four 4-year presidential terms that had no appointments to the Court.[11] A statute could authorize the conditional establishment of an additional seat on the Court (up to a limited total) in order to try to allow each four-year presidency to choose at least one justice. So, for example, it might provide that if by year two of a four-year term no vacancy in the 9-member Court had occurred, a tenth seat would be created to be filled by that Presidency. If the 10^th seat were filled and a further vacancy occurred, say, during the 4^th year of the same presidency, the number of authorized seats would revert to 9. If, however, no such vacancy occurred, and a new president was elected (or the sitting president was reelected), and by year 2 of that presidency no vacancy had occurred, an 11^th seat would be authorized to be filled. Seats could revert down to the norm of 9 if vacancies occur, provided that the presidency at the time had had an opportunity to make one appointment. Such a mechanism could be capped (e.g. at 11, or 13) to keep the Court to a workable number. 

The advantages of such proposals are, first, that they could be enacted by statute. Second, they would improve on democratic inputs to the membership of the Courts (without requiring a constitutional amendment to depart from life tenure). Fluctuating proposals that do not allow the Court to grow too large could not guarantee as much regularity of democratic input as the staggered 18-year terms, but would nonetheless be an improvement over the status quo (assuming the Senate behaved more cooperatively, a problem across proposals).^[12]             

Responding to Recent Abuses of the Confirmation Process? Longstanding structural aspects of the selection and tenure process for Supreme Court justices warrant attention now, with a view towards a long-term fix. But some calls for reform arise more from a felt need to respond to what are seen as abuses of the confirmation process in very recent years.^[13] 

As is well-known, the Senate refused even to consider President Obama’s nomination of Merrick Garland in March 2016, shortly after the death of Justice Scalia in February, on the ground that it was within 8 months of a presidential election and the Senate should wait and “give the people a voice” in the selection of a new member of the Court.^[14] However, in the Fall of 2020, when Justice Ruth Bader Ginsburg died, the Senate rushed to confirm the President’s nominee just weeks before the presidential election. The proffer of a quite novel reason not to consider the Garland nomination, combined with a complete failure to apply the reasoning to a situation in which logically it applies a fortiori, has created widespread concern that the confirmation process was abused. Moreover, as noted above, President Trump – who won the presidency with fewer popular votes than his opponent and who lost the November 2020 election in both the popular and Electoral College vote – was able to make three appointments to the Court during his single four-year term; President Jimmy Carter, who won a decisive popular majority in 1976, was able to make no appointments to the Court. 

These results reflect the randomness of when Supreme Court vacancies arise under our current system, and the counter-majoritarian aspects of the Senate as presently constituted (and operating now under quite broken norms of conduct), as well as the effects of the two-Senators per state rule on the Electoral College. The fluctuating Court proposals described above could help mitigate the randomness problem. 

Despite frustrations of the current moment, applying changes – whether of finite terms or age limits – to currently sitting justices would raise concerns for judicial independence and thus for the rule of law, especially if done by statute, which in the United States is much easier to enact than constitutional amendment. In countries where judges learn that they are subject to relatively easy removal on account of their jurisprudence, it is much harder to sustain judicial independence and the rule of law. Both, as Justice Breyer has recently emphasized, are precious and important.^[15] Expanding the Court, without removing any existing justices, might thus be less of a threat to judicial independence and some scholars have called for such expansion.^[16] But expanding the Court simply to give one specific President the power to fill seats, even when in response to abuses by the other party, invites those in the other party to engage in similar action when they return to power, and thus risks turning the Court into even more of a perceived political football. 

Whether rationalizing a decision to expand the membership on the grounds of redressing an abuse of the confirmation process would serve to contain future responses is at best uncertain; or whether, regardless of rationale, it would elicit “tit for tat” action further threatening the perceived independence of the court, are political questions on which reasonable minds might disagree. Experience elsewhere, however, raises concern about whether, once such a process gets started, it can be contained or would spread to create conditions in which further intrusions on the Court’s independence could result.^[17] 

The broader context and the democratic deficit of the Senate: While it might thus be imprudent simply to expand the Court for the purpose of enabling a single President to make several appointments (however much this may be a justified response to past abuse), the broader context in which Supreme Court justices are selected reinforces my view that change is needed. 

The Senate is designedly not a population-based entity. But the degree to which its structure creates the risk of counter-majoritarianism is substantially greater than that in several other federal systems with which the U.S. is often compared and the degrees of counter-majoritarianism in Congress have increased over time. Indeed, some scholars think it possible that, given demographic change and the composition of the Senate, it might be that no Democratic president will be able to appoint a Supreme Court justice again in the foreseeable future.^[18] 

At the founding, the greatest disproportion between the largest state and the smallest state was about 12.65 to 1 (Virginia being the largest by population, Delaware being the smallest).^[19] Today, according to the 2020 census, the most populous state of California had something like 68 times the population of the least populous state, Wyoming.^[20] Moreover, at the founding Virginia was the only state with more than ten times the population of any other state; today, by contrast, there are ten states with populations over 10 million, and six states with populations under 1 million.^[21] Scholars writing in the 1990s found that the minimum percentage of the population that could elect a Senate majority has been getting smaller since the 1860s;^[22] 2020 Census data suggests that today, the 26 smallest states, with 17.5% of the population, could in theory elect a Senate majority.^[23] Although the Senate need not have any particular partisan skew, in recent decades it has skewed in a Republican direction.^[24] 

It is an unstable situation for a party supported by a minority of the population to be able to control the Senate, frequently the Presidency, and the Supreme Court. The constitutional amending process may also be blocked by the combined effect of the Article V voting rules and the partisan state-by-state demographic skew. If citizens cannot look to elections, nor the courts, nor the amending process, to achieve a federal government that is in broad terms responsive to democratic views, what remains are methods that should trouble all who believe in the rule of law. Thus, even if reforms will only help at the margins, the time has come for reforming the Supreme Court so that it may bear somewhat more of an imprint of recently elected presidents, while at the same time preserving the judicial independence that it has achieved. Other changes may also be needed to the ways in which the Court exercises its jurisdiction, but it will be for the best if the Court itself re-develops modes of judicial restraint suitable to its position in our constitutional democracy. 

The kind of statutory change suggested above – for floating numbers of seats on the Court to enable every presidential term to make a minimum number of appointments – would be far more modest than those Sandy Levinson has argued for in recent years. But it might hold appeal to partisans on both sides; and some improvement, I tend to think, is better than none. 

I look forward to Sandy’s reaction – for he has been such a vigorous and influential force for serious rethinking of the U.S. Constitution. And long may he continue to be so! 

Vicki C. Jackson is the Laurence H. Tribe Professor of Constitutional Law at Harvard Law School. You can contact her at vjackson@law.harvard.edu.