The Supreme Court is Overly Insulated from Democratic Control

Ian Ayres

A few days ago, I published an op-ed in the L.A. Times detailing how disconnected the composition of the Supreme Court has become from electoral influence.  Justices nominated by Republican presidents have constituted a majority of the court for more than 50 years and, unless something changes, will continue to do so far into the future.

A natural comparison is to imagine what the composition of the court would look like if presidents were given two appointments each four-year term (one for each two-year Congressional session). 

E. Donald Elliott has shown that regular presidential appointments were once more the norm for forty years (from 1952 to 1992), with presidents on average nominating and winning confirmation for two Supreme Court justices every four-year term.  But from 1992 to 2016 that average “dropped to only one per term,” as show in this figure from the same article:

With the help of Richard Peay, I have constructed a graph that measures the difference between the actual Court composition and what it would have been with regular presidential appointments (once every two years) as a measure of the court’s democratic detachment.  The following graph shows the degree of detachment over time, going all the way back to 1873 when the Court was first fully composed of Justices nominated by Democratic or Republican presidents: 

The graph shows that over the years, detachment has tended to favor Republican-nominated justices.  The detachment of the Supreme Court’s composition from presidential influence has never been more pronounced.  Under a system of regular appointments, justices nominated by Democratic presidents would currently hold a 6-3 majority on the court instead of holding the 3-6 minority position – that’s why the graph shows Republican-nominated justices holding three more seats than they would with a regular appointment system.

Adam Chilton and coauthors have published an excellent law review article full of useful number-crunching on what the impact of various regular appointment proposals might be – focusing on how long the transition period would be.  They also examine the past and show how often justices have served longer than the 18-year limit that would be produced by the regular appointment proposals.  For example, they include the following graph and description:

The bars are colored by the party of the appointing president with the darker area indicating the years after which a Justice has served eighteen years. At bottom of the figure is a distribution of the number of Justices that have been serving for more than eighteen years over time, organized by year.

The graph shows how the proportion of Justice-years beyond 18-year service has been increasing.  The authors note:

Between 1950 and 1970, only Justices appointed by Democratic presidents served past eighteen years; from the early 1990s through 2010, only Justices appointed by Republican presidents served past eighteen years; and since 2010, Justices appointed by presidents from both parties have served longer than eighteen years.

One small criticism I have of their analysis is their focus on “extreme ideological imbalance,” which they define as “seventy-five percent or more of the Justices appointed by presidents of the same party.”  They reckon that the Supreme Court has had extreme ideological imbalance “for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court.”  But in my view, holding seventy-five percent or more of the Court is not a concern if that political party has held the presidency for an analogous proportion of recent Congresses.  The detachment of the Court from democratic control should be a central concern.  As I said in my op-ed: 

The Jan. 6 assault on the U.S. Capitol, with its attempt to stop the transfer of power from Republican President Trump to Democratic President Biden, can be seen as an attempt to insulate the executive branch from democratic control. That goal has largely been accomplished, more or less quietly, with regard to the judicial branch.