In a previous post, I laid out my reasons for restructuring the current US judicial system. First, and most importantly, the courts as presently constructed, most especially the Supreme Court, have become an oppositional force against our democracy. Certainly, Citizens United, Shelby v Holder, and this week’s ruling on shutting down the census early shows that the current Supreme Court is actively opposed to full participation in our democracy by all eligible Americans. Extremist Amy Coney Barret’s refusal to forcefully defend the peaceful transition of power, to repudiate the idea that a president could unilaterally postpone an election, to flatly declare that voters can not be denied the franchise simply because of their race clearly shows that the Court will probably only get worse on the issue of voting rights and democracy if she is confirmed.
The opposition to democracy extends to the lower courts as well. A recent study showed that judges appointed by Republicans voted to restrict ballot access 80% of the time. In a scathing dissent in a 6th Circuit Court of Appeals case involving signature matching in Tennessee, Judge Karen Nelson Moore made that point explicitly. She wrote, “That is because many federal courts-more specifically, many federal courts of review-have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote. Rarely does this have anything to do with the merits of the case. No, the effort has not been so bold as that. Most often, Purcell provides the cover-a convenient court-made doctrine that provides plausible deniability sounding in vague cries of ‘confidence in the electoral process’… Today, however, standing is the shroud of choice. Whatever the disguise, the result is the same. Hiding behind closed courthouse doors does not change the fact that ruling by ruling, many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’ foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to participate in it fully. On its own, today’s ruling may not-likely will not-change the course of this election. But it is another drop in the bucket that is the degradation of the right to vote in this country…I fear the day we come out from behind the courthouse doors only to realize these drops have become a flood”. Rather than protecting the minority from the tyranny of the majority, the courts have instead become advocates for the tyranny of the minority.
An additional reason the courts need restructuring is because it is clear they do not have the capacity to resolve important cases in the expeditious manner that is often required. Just yesterday, the DC Court of Appeals set a hearing involving the House Judiciary’s subpoena of Don McGahn for February, 2021. As part of that hearing, the parties must address whether the case become moot simply because there will be a new Congress in January and the technical authority for that subpoena will have expired. As Max Kennerly writes, “In this vital separation of powers case, the subpoena was issued April 2019, three months into the 116th Congress. The lawsuit was filed August 2019. The district court ruled in November 2019. The D.C. Circuit squandered so much time they’re now asking if it’s all moot anyway”. In the Eastern District of California, it can take as long as 40 months for a case to be heard and the average time for a civil case to go to trial across the whole country is now two years.
Similarly, Steve Vladeck has noted the expansion of the Supreme Court’s “shadow docket” which are basically unsigned summary orders from the Court that almost never provide the Court’s legal rationale for its decision. As Vladeck notes, just since July, the Court has issued “shadow docket” rulings that “cleared the way for the first three federal executions in 17 years after lower courts had repeatedly halted them; refused to disturb a Nevada COVID-related emergency order that treated churches more harshly than casinos; blocked a grassroots effort in Idaho to increase funding for K-12 education; allowed President Donald Trump to finish using military construction funds to complete his controversial border wall-even though every lower court to consider the issue has ruled that such repurposing of funds is unlawful; pushed back resolution of a dispute between the House of Representatives and the Justice Department over the Mueller report in a way that will ensure that the Justice Department prevails; prevented potentially hundreds of thousands of eligible voters in Florida from voting this November by refusing to freeze Florida’s ‘pay to vote’ law, which requires felons to clear any claimed outstanding judgments before voting, and which the lower court had struck down as flagrantly unconstitutional; and froze a district court order that had required an Orange County jail to take measures its own policies already required to protect inmates from an outbreak of COVID-19”. Without providing any legal rationale for these decisions, many of which involve core constitutional issues, the Court is acting more like a star chamber than a deliberative body interpreting the law and the Constitution.
Relatedly, the Court has also received over four times as many emergency stay applications in the four years of the Trump administration than in the entire sixteen years of the G.W. Bush and Obama presidencies combined. It has granted more than 6 times as many of those stays, most of which benefitted the Trump administration. The necessity for such emergency stays again seems to indicate that the courts are not resolving cases in the expeditious manner the individual cases require.
Of course, an extremist 6–3 Court can do an enormous amount of damage with respect to women’s control over their own bodies, health care, civil and LBGTQ rights, immigration, religious exemptions to discriminate, the environment and climate change, nondelegation, and a myriad of other progressive policies. But, with a functioning democracy, some of that damage can be mitigated. With the current tyranny of the minority, we are doomed.
While Republicans will naturally scream that any effort to restructure the size of the federal judiciary is the ultimate Democratic power grab, the reality is that Republicans have been restructuring the courts for years. McConnell, by refusing to give a hearing to Merrick Garland, basically restructured the Court to eight members for a full year and GOP Senators stated their intent to have it remain that way for the entirety of Hillary Clinton’s term had she won the election. During the Obama years, McConnell refused to confirm Obama’s nominees for well over one hundred open seats and then spent the last four years filling those seats and an additional hundred more with Federalist Society hacks. Three of those blocked Obama seats were on the DC Court of Appeals, the second most important court in the land, and Republican Senators floated the idea to make that reduction permanent. Before Trump’s most recent appointments that gave conservatives a majority in the circuit, Republicans also discussed breaking up the 9th Circuit into three separate Circuits. In addition, in 2016, Republicans changed the size of state Supreme Courts in Arizona and Georgia as part of an effort to maintain conservative control of those bodies.
Changing the size and structure of the courts, then, is nothing new and the Constitution’s Article III gives Congress wide discretion in determining how our federal court system should be set up. For the first eighty years of this Republic, the size of Supreme Court fluctuated from five to ten justices before settling on nine in the Judiciary Act of 1869, corresponding to the nine circuit courts that currently existed at that time. Since that time, the federal judiciary has added hundreds of judges and four more circuit courts. In some ways, the anomaly is the Supreme Court still having nine justices.
When thinking about restructuring the courts, the obvious focus will be on the Supreme Court simply because it is the final arbiter of what the law is. With a hat tip to @GaneshSitaraman who has looked at this issue in depth, let’s look at the various options involved in restructuring the Supreme Court. The most obvious option for Court restructuring is simply to add more justices. Some suggest Democrats should try to add two justices to replace Merrick Garland’s stolen seat from 2016 and now the rushed installation of Amy Barrett this year. Others suggest adding four more seats to realign the number of justices with the number of circuit courts. Both of these options look more like a political stacking of the Court and they face the real potential for Republican retaliation the next time they gain control of the White House and Senate.
Others have called for a far larger expansion. In 2012, the conservative Jonathan Turley advocated for a nineteen member court and liberal Elie Mystal has proposed the same number. Mystal, however, wants the Court to act more like circuit courts, where a randomly selected panel of judges, usually three, hear the case and only a small percentage of those decisions end up being successfully appealed to the full court. As Mystal writes, “Panels are great for the appearance of legitimacy. The random wheel makes it impossible to predict which judges will get which case and thus the way that a case will go. The court can still overrule a panel en banc, but again, it takes a majority to do so. That’s a significant contrast with the way the current Supreme Court operates. It takes only four votes-a minority-for the court to grant certiorari and agree to hear a case as a full body”. That randomness also make it harder to craft specific cases for specific justices as conservatives have done with Justice Kennedy and now with Justice Roberts.
In addition, a far larger Court would be able to hear a far larger number of cases, expediting decisions and eliminating the “shadow docket”. Turley also notes that a larger Court would mitigate the bitter confirmation fights we see now. He writes, “The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench”. Getting to nineteen, however, may be the more difficult prospect. Turley advocates allowing Presidents to nominate two additional justices each term while Mystal wants to add them all at once. His original idea was to add a 5–5 split, five Democratic nominees and five nominees chosen by Republicans. With the ascension of Barrett, that might have to change to a 6–4 split for Democrats which would still theoretically give the conservatives a one vote majority but also satisfy the Democrats’ thirst for balancing out Garland’s stolen seat and Barrett’s illegitimate ascension.
Pete Buttigieg offered a different take on Court expansion during his campaign, proposing the 5–5–5 solution. Basically, the Court would be expanded to 15 members, five members nominated by Democrats and five nominated by Republicans. Those ten would then choose the remaining five justices from the existing federal courts and who would only serve for a one-year term. The chosen five would serve their one-year term two years from when they were selected. If the ten could reach no agreement, then the full Court would not be able to meet for the entire one-year term. The biggest potential problem with this plan is that the Constitution clearly says Supreme Court justices will be chosen by the President, making it highly unlikely the plan will past muster without a Constitutional amendment. In addition, with the conservatives apparently already holding six seats, this proposal may have to become the 6–6–5 solution or something similar. But it maintains the benefit of mitigating confirmation fights as well as adding the randomness offered by the panel option.
Other ideas for restructuring the Supreme Court don’t involve permanently adding justices at all. Congressman Ro Khanna introduced a bill limiting Supreme Court justices to an 18-year term rather than serving for life. Under this plan, the existing nine justices can still serve for another 18 years but they will be joined by nine new justices appointed over the next 18 years. The President would have the ability to make biennial appointments during the first and third years after each presidential election. After those 18 years are up, the longest serving justice, whether from the original nine or not, would be moved to so-called “senior status”. A judge having that status can still serve on other, lower federal courts and the most senior of the senior status judges would serve on the Court to fill a vacancy from death or retirement until his/her replacement is confirmed. An additional feature is that, if the Senate refuses to fulfill its duty to advise and consent on a particular justice within 120 days, the justice is automatically “confirmed”. This eliminates the tactic that McConnell used on Garland and requires the Senate to actually vote on the nominee.
There are a number of problems with this proposal, both constitutionally, and from the prospective of democracy reform. The idea of having senior status judges still active in lower courts may be constitutionally suspect because the lower court is not the actual office to which they were confirmed. From the prospective of democracy, even if this plan goes into effect in 2021 and Democrats control the White House and the Senate for the next ten years, the conservatives will still have a majority until late in this decade. That seems suboptimal. Another concern regarding these term limits is that it will allow younger appointees to build a resume on the court in order to serve future political or business interests rather than strictly focusing on the constitutional issues at hand.
A wholly different approach to restructuring the Court involves limiting the scope of its judicial review. One of these kind of proposals would require the Court to have a supermajority to strike down a law passed by Congress and signed by the President. That supermajority could require six, seven, or even eight votes out of the nine person Court. This supermajority requirement is actually in place in the state Supreme Courts of Nebraska and North Dakota. This proposal would immediately neuter any new anti-democratic actions by the Court but it also could dangerously shift an enormous amount of power away from the Court and over to the legislative and executive branches.
A similar proposal is to limit judicial review through the process of jurisdiction-stripping. As opposed to the supermajority approach, jurisdiction-stripping simply prevents the Court from reviewing certain laws at all. For instance, Congress could restrict the Court from reviewing any voting rights legislation. Once again, however, the constitutionality of such a proposal is questionable as judicial review is at the core of separation of powers. In addition, there are many laws that Congress passes that cover a range of policies, making it difficult to determine what laws might actually qualify for jurisdiction-stripping. Other potential issues would be how to resolve situations where state law conflicts with a federal law that the Court is not allowed to review or a situation where a subsequent administration simply refuses to enforce a law where the Court has been stripped of jurisdiction. What kind of remedy would be available in such a situation?
Another option to reduce the Court’s power is to provide for a legislative override. Just like Congress can use the Congressional Review Act to override actions by a federal agency and rewrite the law that governs that action, so to would Congress create an expedited process to override certain Court decisions and rewrite the law accordingly. According to Ganesh Sitaraman, the process would work as follows: “If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation”.
As Sitaraman readily admits, the effect of this proposal would be somewhat limited. It would not apply to truly constitutional questions, only to the interpretation of federal statutes. Says Sitaraman, “It’s worth emphasizing that this power only applies to Supreme Court decisions that interpret statutes, not those that interpret the Constitution. But the majority of cases that come before the Court do not concern constitutional matters”. In addition, this new legislative power would probably only be effective when one party controls both houses of Congress and the White House, hardly a regular occurrence in this era of divided government. Such a legislative power grab may also make the Court more inclined to treat cases as questions of constitutional interpretation, thereby bypass any possibility of legislative override.
Other options combine Court expansion with limiting judicial review. Bernie Sanders has offered a solution that would make the Supreme Court as we know it unrecognizable. The plan basically makes all Court of Appeals judges automatically associate judges of the Supreme Court. Cases would be heard by a panel of nine randomly selected from those nearly 200 federal judges. No more than 5 of the 9 could have been appointed by a President of the same party and the nine judges would still require a supermajority to overturn federal laws. This proposal combines the benefits of the panel approach with a massive expansion of the Court, making individual federal court appointments far less momentous and contentious, as well as expanding the diversity of experience on the Court.
Finally, some have suggested making the Justice’s life more difficult while simply threatening to expand it, all in the hopes that it will rein in the conservative majority. Elie Mystal has advocated making the justices on the Supreme Court work under strict ethical guidelines. Says Mystal, “The Supreme Court is the only court in the land whose judges operate under no ethical guidelines. The Constitution says the justices hold their positions while in ‘good Behaviour,’ yet nobody has defined precisely what that entails for these nine people. I’d argue that sexual harassment is not good behavior. I’d argue that attempted rape and lying under oath are not good behavior. I’d also argue that holding a meeting and taking a picture with people who have active business before the court is textbook unethical and, as on any other court, should require justices to recuse themselves from that active matter. Yet we live in a world in which Kavanaugh and Justice Samuel Alito can and do meet with a member of the National Organization for Marriage, an anti-LGBTQ group that has filed an amicus brief in a case that the court is considering on whether gay and transgender workers are protected under the Civil Rights Act”.
In a similar vein, Scott Lemieux has proposed withholding funds for Supreme Court clerks, forcing the judges to do their own work and making it mandatory that all appeals from federal courts be heard, massively increasing the justices caseload. Others look to history and see that FDR’s misunderstood attempt to pack the Court because of its refusal to validate the New Deal actually worked despite not being able to add the new justices he wanted. The threat of court-packing restrained the Court in that instance. And indeed it might restrain the Court today as long as Democrats have control of the Senate and the White House. But I don’t think anyone believes that the Court won’t revert to its current form when Democrats lose power.
Not all the focus should be on the Supreme Court when we think about restructuring the federal judiciary. The anti-democracy sentiment on the federal appeals court often saves the Supreme Court from even having to get involved. As the New York Times reports, “Federal district courts have tended to rule for Democrats in litigation over how to run the election, but appeals courts, well stocked with the president’s nominees, are blocking them”. As one voting rights advocate noted, “We’re seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won’t be remediable before the election”.
When it comes the federal appeals courts, the only immediate solution seems to be expansion. The federal courts have not expanded in twenty years, with the last expansion in 1990 adding 85 judges. The current Democratic platform notes, “Since 1990, the United States has grown by one-third, the number of cases in federal district courts has increased by 38 percent, federal circuit court filings have risen by 40 percent, and federal cases involving a felony defendant are up 60 percent, but we have not expanded the federal judiciary to reflect this reality in nearly 30 years”. The platform commits “to creating new federal district and circuit judgeships” in accordance with recommendations from the Judicial Conference, which is actually headed by John Roberts. But the Judicial Conference only recommends adding about 70 new judges and the vast majority of them will be district court judges. That represents only about an 8% expansion in the federal judiciary and does absolutely nothing to deal with the problems we are seeing with the appellate courts.
Democrats really should think about splitting the Ninth Circuit into two or three new circuits as the Republicans have already proposed. As of 2019, Trump’s judicial appointments were more than 80% white and more than 70% male. Those percentages are now reflective of the federal judiciary as a whole. Consequently, Democrats should look to what Jimmy Carter did in the late 1970s, dramatically expanding the federal courts and filling those slots with diverse candidates that are more representative of the country as a whole. Such an expansion will not only speed the delivery of justice but produce a more equitable system overall. As Christopher Kang and Brian Fallon write, “Our shortage of judges and our judiciary’s lack of diversity deepen racial inequities that plague our justice system and kneecap our ability to make the courts more equitable. In order to make our criminal justice system more just, we need to process cases more quickly”. That simply requires more judges.
If Democrats are fortunate enough to have total control of the federal government come next January, they must act boldly if they truly want to be able to govern. And if they want to continue to govern going forward, democracy reform must be on top of the agenda, otherwise we will once again fall back into minority rule. Restructuring our federal courts is an integral part of those necessary reforms. But to even have a hope of implementing any one of the above options for restructuring our courts will probably require the elimination of the filibuster. It is unclear whether Democratic leadership understands the dangers our democracy faces even after a defeat of Trump and the norms that will have to be discarded in order to save it. It is up to us to make them understand.
Originally published at https://thesoundings.com on October 18, 2020.