Tuesday, May 03, 2022

Conversing about the Courts

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Reforming the Supreme Court of the United States, convened as part of LevinsonFest 2022.

I am grateful to the four participants who prepared very interesting and illuminating contributions to an important discussion. To offer full reactions would go on too long and try the readers’ patience, so I shall try to limit myself to some overarching observations:

First, I think it is telling that all of us seem to be fully comfortable with the idea of term limits. It is getting harder and harder to find anyone who genuinely defends either as “necessary” or even “proper” the truly exceptional national American practice of “full-life” tenure that allowed John Paul Stevens to serve for 34 years until he turned 90. I highlight “national” because only one of the fifty American states allows similar full-life tenure. As is often the case, even a brief look at American state constitutions will reveal how “exceptional” the national Constitution is even within our own borders, let alone internationally. There is nothing “unAmerican” in placing judges under the discipline of term limits or, indeed, even electing them rather than relying on an increasingly grotesque full-bore political process to stock the federal judiciary.

All of us are more than aware—and some of us remain truly angry—that Ruth Bader Ginsburg, even years after she was diagnosed with what are typically quite virulent forms of cancer, chose to roll the dice with the country’s future for no good reason other than her own vanity. Not only did she lose her bet; she also inflicted enormous damage on the country (with the help, of course, of Donald J. Trump and Mitch McConnell). Even the term that most of us support—eighteen years, which would allow each president to appoint two justices per term, with no single president being able to “pack the Court” with a majority—is significantly longer than is typical around the world with regard to apex courts that, inevitably, do far more than simply offer formal readings of what “the law” is said to require. The eighteen-year term idea is almost completely a function of the fact that we have a nine-person apex court. Were it smaller or larger, then other terms (or perhaps simply age limits) might be far more appealing.

I find intriguing Vicki Jackson’s twist on the term-limit idea, which allows for some adjustment in the size of the Court without engaging in the apparently dreaded “court-packing” about which Prof. Fraley especially writes. What is most interesting about Fraley’s data, I think, is its demonstration that at least some people somewhere are always talking about court-packing. It is political elites who seem to be resistant at present to any serious discussion of such possibilities. Perhaps they think it is simply politically impossible and thus consider it a waste of scarce political time and resources. Or perhaps they believe that it is simply too “radical” an idea, guaranteed to be dismissed in “the court of public opinion.” We have certainly seen, for both better and for worse, the impact of “idea entrepreneurs” on our public discussion over the past decade. But there appear to be few such entrepreneurs with regard to overt packing, even as Mitch McConnell proved so demonically able in assuring the packing by Republicans of the “inferior” federal judiciary and the “unpacking” of the seat that by political right should have gone to Merrick Garland. Yet public opinion is not a singular phenomenon spread evenly across the country, and perhaps we shall see some significant discussion after the Court reverses Roe and eliminates affirmative action, not to mention the possibility of crippling the Environmental Protection Agency as an effective regulator of climate change.

I confess to being increasingly taken with suggestions that “the Court” might be composed of random selections from a far wider pool of federal judges and, I would add, chief justices of state supreme courts. I think it a significant marker of “non-diversity” on the present Court that it contains no one who has had any experience at all as a state judge. The major problem with such an idea is that it guarantees that we will no longer get anyone on the Court who has had a truly significant non-judicial career as an elected public official or even private lawyer (such as Lewis Powell). It is terrible that none of the current justices has ever run for, or therefore served, in any elected office at any level of government. The most politically experienced justice, ironically or not, is Clarence Thomas, who at least headed a reasonably important executive agency. But when Stephen Breyer finally retires—none too soon—there will be no one on the Court who has ever spent quality time on Capitol Hill actually experiencing what the process of legislating is like at the national level or, like Sandra Day O’Connor, serving as a legislative leader charged with herding cats and procuring necessary compromises.

Breyer’s experience as General Counsel of the Senate Judiciary Committee, under Ted Kennedy, was important in understanding his overall jurisprudence. In contrast, almost all of his colleagues served in the Executive and picked up, perhaps as Madison would have predicted, a certain disdain for legislators. Serving as a clerk on the Supreme Court, which now seems almost a prerequisite for appointment, does nothing whatsoever to provide the kind of diverse experiences that might be helpful. Indeed, it probably reinforces a terrible tendency to view “constitutional law” as the product of the kind of “case-crunching” that legal education teaches. I very much agree with former judge Richard Posner’s observation that multi-member judiciaries should be viewed as “teams.” Just as one does not want to hire only pitchers (or, if one prefers orchestral analogies, violinists), we should look well beyond the parochial institutional backgrounds that now typify almost all of the justices. This means not only taking seriously schools other than Harvard or Yale, but also recognizing that we currently have “enough” alumni of the Justice Department, whether the SG’s office or even OLC. The Belgian constitution requires that at least four of its twelve justices be former parliamentarians. We could do worse than consider such a possibility for ourselves.

Laurie Ringland offers a fascinating “counter-history” if we in fact had term limits and thus had more frequent appointments. One can wonder, though, who exactly will be influenced by her illuminating table. That is, will both progressives and conservatives take away the lesson that they should seek guardrails against the basically arbitrary and capricious system by which judicial vacancies emerge and replacements named? Or will conservatives simply view her as yet one more liberal whining about the fact that Republicans have played the “appointment game” so much better than Democrats at least since 1970?

One can only wonder how American history might have been different had the talented politician Lyndon Johnson not succumbed to his personal desires to name his friend Abe Fortas as Chief Justice and then Texas former Representative Homer. Thornberry to succeed him as Associate Justice. This was even more politically inept than Barack Obama’s decision to defy Mitch McConnell by nominating Merrick Garland, a fine and decent person whom absolutely no one outside of Washington knew or cared about. What if Obama had had the political wit to nominate Amy Klobuchar or Sheldon Whitehouse and to challenge McConnell’s willingness to blow up any semblance of what remained of Senatorial comity? Thurgood Marshall, named by Johnson in 1967, would turn out to be the last Democratic nominee for a full quarter century, and then Bill Clinton got only two appointments in his eight years of office (as did Barack Obama). But, of course, Richard Nixon named four justices in his truncated years in office and Donald Trump three.

My former colleague Sam Issacharoff offers in some ways the most depressing account of our dilemma. At one and the same time, he appears to put great faith in independent judges as potential guardians against what he terms “populism,” while recognizing that there is no reason to believe that politicians charged with appointing judges will be very eager to appoint truly independent-minded jurists who might threaten their own agendas or political hegemony. Cynics sometimes speak of newly emerging countries that engage in “one-person/one vote” and one-time elections. Similarly, the key question may turn out to be the second set of judges who will replace the initial bench, which might be distinguished and admirable indeed.

Moreover, we can genuinely debate the degree of “independence” we really desire in judges. Going back to Brutus’s critique of the 1787 Constitution as licensing what he feared would be an autocratic and far-too-independent judiciary, there is certainly a tradition of fears of judicial tyranny. One of the most interesting features of some of the testimony before the “Biden Commission” (on which Jack Balkin himself served) was testimony by younger progressives, like Yale’s Sam Moyn or Harvard’s Niko Bowie, who sounded much like James Bradley Thayer in decrying a strong judiciary. I wrote my own dissertation over a half-century ago on Holmes and Frankfurter and, like most “progressives” of the time, disdained their visions of “judiciary restraint” that too often served to justify varieties of oppressive government. The Warren Court was truly inspirational. But I think that we recognize, more and more, that it was truly aberrational. Over most of its history, the Court has been truly conservative, if not reactionary, in its politics. There is a line running from Prigg v. Pennsylvania to Dred Scott to The Civil Rights Cases to Parents Involved and, most relatively recently, the truly disastrous case of Shelby County. Those cases far outnumber Brown v. Board of Education or other “inspirational” decisions. One reason that Ginsburg apparently insisted on remaining on the Court is that she feared that her successor, even if chosen by a Democratic President, would not be so progressive as she fancied herself, but Bill Clinton was scarcely seeking a truly radical appointee back in 1993, and he certainly did not find one when naming Ginsburg.

Finally, my sometime colleague Vicki Jackson aptly noted that I would probably find her own suggestions, however welcome, possibly not radical enough. She is right in this specific sense: I have become ever more convinced over the past two decades that the obsessive concentration by talented legal academics and political scientists on the judiciary has blinded us to the monumental deficiencies of the rest of the United States Constitution. As Vicki notes, one cannot understand the actualities of judiciary appointment without paying full attention to the United States Senate. I have come to believe that the Senate, with its grotesque over-representation of non-urban states, is indefensible in terms of any plausible 21st century theory of democratic (or even republican) government. But, coupled with the equally indefensible Article V, which makes amendment difficult to the point of impossibility regarding the Senate, we may well be doomed. It is therefore easier, almost in its own way comforting, to believe that “judicial reform” can save us from a very dire fate in the future regarding such problems as global warming and general climate change, to name only the most apocalyptic of threats short of nuclear war. Courts, whether conservative or progressive, can do relatively little to address the most truly existential of our political problems. I genuinely don’t know how important “constitutional design” truly is, when compared, say, with “political culture” or environmental and economic exigencies. However, if a genie were to appear and offer only a limited number of wishes, I would probably spend my reformist impulses on institutions other than the federal judiciary, whatever its undoubted problems.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at

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