Partisan Entrenchment and 18-year SCOTUS Terms

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.

Lori A. Ringhand

I am delighted to have this opportunity to honor Sandy and his work. So much of how I think about the Supreme Court and the Constitution has been influenced by Sandy’s work, as well as the work of so many of the other people participating in this event.

Today I am going to focus on a part of Sandy’s work that has been foremost in my mind of late: partisan entrenchment and constitutional change. In 2001 Sandy and his frequent co-author Jack Balkin published a piece in the Virginia Law Review titled “Understanding the Constitutional Revolution.” The piece laid out a way of thinking about the Supreme Court that has had a profound influence on my work. Despite our profession’s obsession with finding the perfect method of constitutional interpretation, the credibility of the Supreme Court comes not solely from its interpretive acumen but also from the long-term legitimacy it gains when its members are appointed by democratically accountable actors through the confirmation process.

Sandy’s theory of partisan entrenchment captures this essential relationship between constitutional law and constitutional politics. Political parties that win enough elections can extend their influence over constitutional law by entrenching like-minded justices on the Supreme Court. There is nothing inherently wrong with that: it is exactly what we should expect from a constitutional design that gives the nomination and appointment of Supreme Court justices to the President and the Senate, and it is a key method through which constitutional developments stay, over time, more or less in line with the constitutional commitments of the American people. This works only “roughly” and “unpredictably,” but it nonetheless provides a gloss of accountability essential to the Court’s work.

Written in the aftermath of Bush v. Gore and the 2000 presidential election, the focus of “Understanding the Constitutional Revolution” was on how Bush v. Gore risked skewing this indirect accountability by allowing the justices, rather than the people, to choose who would choose future justices. In Sandy’s words, the five-justice majority in Bush v. Gore “severed the connections between their constitutional revolution and popular will. They insulated themselves from the normal checks and balances between the political branches and the judiciary.” Reflecting the gravity of that action, “Understanding the Constitutional Revolution” began with the words “We live in extraordinary times.”

Our times, however, have become even more extraordinary, and the link between the high Court and elections has become further attenuated. Three of the nine justices currently sitting on the Supreme Court were appointed by a President (Donald J. Trump) who lost the popular vote, and did so by a historically unprecedented margin. One of those justices occupies a seat held open for more than a year to prevent a Democratic president (Barack Obama) from filling it. Two others were appointed by a second term president (George W. Bush) who lost the popular vote in his initial election and would not have enjoyed the advantages of incumbency in his second but for the Court’s decision in Bush v. Gore. These facts do not make the appointments of these justices illegitimate, but they do strain the link between constitutional change and democratic legitimacy.

But how extraordinary is this, really?

It turns out, we have been here (or at least near here) before, and that past experience may have offer lessons for our current moment.

Five US presidents have taken office by winning the Electoral College while losing the popular vote: Donald J. Trump, George W. Bush (in his first term), Benjamin Harrison (1888), Rutherford B. Hayes (1976) and John Quincy Adams (1824). Bush did not fill any Supreme Court vacancies during his first term. Adams filled one (Trimble) and Hayes filled two (Harlan and Woods). Benjamin Harrison, though, filled four: David J. Brewer, Henry Billings Brown, George Shiras, and Howell Edmund Jackson. All of these justices were part of the judicial voting bloc, emergent in the late nineteenth century, that would play a critical role in cramping federal power for first decades of the twentieth. Two of them – Brewer and Brown – would join the majority opinion in Lochner v. New York. Brown would write the majority opinion in Plessy v. Ferguson, and Shiras may have provided the critical vote to invalidate the federal income tax in Pollock v. Farmers’ Loan and Trust Co.

 Partisan entrenchment, Sandy teaches us, must be earned at the ballot box. But the anti-majoritarian features of our system of government, the same features that Sandy decries in much of his work, can operate to facilitate entrenchment even in the absences of sustained electoral support, exactly like it did for Presidents Harrison and Trump. This is perfectly constitutional – perhaps it is one of our constitutional tragedies – but when Supreme Court majorities are formed by electoral minorities, it undermines the Court’s legitimacy as an instrument of constitutional development. Presidents who, because of the vagrancies of judicial deaths and retirements, fill a disproportionate number of seats relative to their years in office likewise enjoy an unearned advantage in entrenching their views on the high Court.

 Fixed judicial terms are the solution to this problem. There are many advantages to fixed terms, most of which have been expounded on at length elsewhere. It is Sandy’s work, though, that most clearly supports fixed terms by connecting the dots between the constitutional politics of Supreme Court appointments and the constitutional law handed down by the Supreme Court. As Sandy writes, “political parties appoint judges or Justices who reflect the vector sum of political forces at the time. Each judge or justice then simply does his or her best given his or her beliefs.” The results will be unpredictable – the Court’s relationship to the constitutional commitments of the people need not be perfect to be important - but they need not and should not vary because some presidents enjoy a vacancy feast while others languish in famine.

 What would such a Court look like? Let’s imagine 18-year terms, with vacancies occurring every two years in the first and third year of a presidential term. Assuming the justices are replaced every two years (in order of seniority for the earlier-appointed justices), here is what the composition of the Court would have looked like under this system since 1992 (“MR” and “MD” stand for Moderate Republican and Moderate Democrat, in recognition of the effect of Senate control on presidential choices and with apologies for using party labels as a short cut for judicial ideology):

 

Justice[1]	Retirement	President (appointment)	Senate[2]	Ideology of Replacement
White	1993	Clinton 1	D	D
Blackmun	1995	Clinton 2	D	D
Rehnquist	1997	Clinton 3	R	MD
Stevens	1999	Clinton 4	R	MD
O’Connor	2001	G.W. Bush 1	D	MR
Scalia	2003	G.W. Bush 2	R	R
Kennedy	2005	G.W. Bush 3	R	R
Souter	2007	G.W. Bush 4	D	MR
Thomas	2009	Obama 1	D	D
Clinton 1	2011	Obama 2	D	D
Clinton 2	2013	Obama 3	D	D
Clinton 3	2015	Obama 4	R	MD
Clinton 4	2017	Trump 1	R	R
G.W. Bush 1	2019	Trump 2	R	R
G.W. Bush 2	2021	Biden 1	D	D

 

As illustrated above, with regular 18-year terms, the composition of the Court would be much more balanced than it is currently. Rather than a six-justice conservative majority with Chief Justice Roberts or Justice Kavanaugh sitting as the median justice, we (presumptively) would have a Court comprised of four strongly liberal justices, three strongly conservative justices, a moderately conservative justice, and a moderately liberal justice. A Court so comprised might well find common ground on many issues. More fundamentally, it almost certainly would better represent the constitutional preferences of the American people.

We do not know what our current undemocratic Court will bring. Political coalitions shift, party priorities change, and not all presidents prioritize ideology equally in all of their judicial appointments. Shifts in any of these factors could change the trajectory of the Court over the next decade. But one thing we can be certain of is that Sandy’s body of work will inform and illuminate our understanding of what the Court does, whatever that turns out to be.

Lori A. Ringhand is the J. Alton Hosch Professor of Law and Josiah Meigs Distinguished Teaching Professor at the University of Georgia School of Law. You can contact her at ringhand@uga.edu.

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[1] https://www.supremecourt.gov/about/members_text.aspx

[2] https://www.senate.gov/history/partydiv.htm