BY: Curtis Yun
Curtis Yun is a sophomore at Georgetown University studying government and anthropology. He is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.
The Supreme Court of the United States is the highest court in the land and the only federal court that is constitutionally mandated. In order to insulate the Court from political influence when hearing cases of utmost importance, the Framers decided to grant life tenure to Justices who are nominated by the President and confirmed by the Senate. Essentially, the Court was designed to be an independent, nonpartisan body that could deliver fully and fairly deliberated legal decisions.
Unfortunately, the original vision of the Framers for a depoliticized judicial branch has vanished. The recent confirmations of Justices Brett Kavanaugh and Amy Coney Barrett laid bare how intensely polarizing the Court has become. Justices [CY1] today are likely to vote in favor of the party that appointed them more consistently than ever before in U.S. history.[1] This is a grave development that has demonstrably led to bitter confirmation battles and the erosion of the Supreme Court’s nonpartisan reputation[2] [3] . If the American people are not confident in the Court’s ability to deliver impartial justice, then the Court’s ability to meaningfully fulfill its constitutionally mandated role of settling important legal conflicts may be in jeopardy.[2]
The political response to this issue has been unproductive and divisive. Democrats have called for packing the Court with their own nominees, while Republicans have expressed their intent to block any kind of reform.[3] Saving the Court will require bold thinking, but it must also be devoid of partisan hackery. A potential solution is the “balanced bench” plan, which was developed by professors Daniel Epps and Ganesh Sitaraman, and prominently supported by 2020 presidential candidate Pete Buttigieg.[4]
The balanced bench plan has several components. First, the Court would start with ten permanent Justices: five affiliated with the Democratic Party, and another five with the Republican Party.[5] Second, these ten Justices would then select an additional five Justices from U.S. appeals courts or possibly district-level courts.[4] [5] [6] The catch is that the party-affiliated Justices must select these additional Justices unanimously or by some supermajority.[7] The five nonpartisan Justices would be chosen two years in advance, and then serve nonrenewable, one-year terms.[8]
This proposal intends to restore the Court’s nonpartisan reputation. Under the balanced bench plan, the permanent Justices would likely agree on additional Justices who are known for their “fairness, independence, and centrism,” and who have a record of voting across party lines.[9] Assuming that the permanent, party-affiliated Justices want their respective views to prevail, they would veto judges who are steadfast partisans and instead compromise on those who are “open-minded and persuadable.”[10] This mechanism ensures that the bench always consists of diverse views and judicial experiences.
In addition, the confirmations of permanent Justices would no longer be as high stakes as they are today. Under this proposal, there are an equal number of Justices who are affiliated with the Democratic and Republican parties, and additional nonpartisan Justices are required in order for the Court to hear cases. Therefore, the fate of controversial issues, such as abortion or immigration, would not rest solely on the outcome of a single confirmation battle.[11] Instead, such cases would actually need to be fully and fairly deliberated by a bench that consists of not only party-affiliated Justices, but also those who have been unanimously selected for their independence and open-mindedness.
Critics of the balanced bench plan have argued that assigning Justices to parties defeats the purpose of depoliticizing the Court[6] [7] . However, Epps and Sitaraman have emphasized that there is currently no reliable actor in the U.S. government that selects Justices without regard for party affiliation.[12] Hence, the best solution is to implement a system in which partisan actors are incentivized to select nonpartisan Justices.[13] The goal is to restore a Court that issues landmark rulings not solely based on predictable party allegiances. In fact, bringing back consensus to the Court is important.
Historically, consensus has been the unwritten rule for the Supreme Court. Most prominently, the Warren Court (1953-1969) delivered landmark decisions with unanimous judgments or overwhelming majorities.[14] In the midst of a politically divided bench, Chief Justice Earl Warren successfully formed winning coalitions and sought to express the full confidence of the Court through historic cases, such as Brown v. Board of Education (1954) and Gideon v. Wainwright (1963) — both were unanimous decisions.[15]
Admittedly, consensus amongst members of the bench is still common, especially in cases that do not concern high-profile political issues. Since 2000, unanimous judgments made up 36 percent of all decisions, while overwhelming majorities made up 15 percent.[16] Nevertheless, as mentioned before, Justices are increasingly voting along party lines, polarizing the American political landscape with alarmingly slim majorities in big cases, such as Bush v. Gore (2000) and Shelby County v. Holder (2013).[17]
If the Court cannot restore its historic reputation of delivering decisions impartially, the institutional legitimacy of the judicial branch itself may be compromised in the future. Hence, serious reform is needed in order to save the Court. The balanced bench plan is one of many solutions which have been proposed to depoliticize and transform the Court. While I believe that this plan would be the most effective solution, the greater issue at hand is that political leaders need to recognize the imperative to restore the nonpartisan judicial branch[8] [9] [10] [CY11] the Framers had originally envisioned.
[1] Josh Lederman, Inside Pete Buttigieg’s plan to overhaul the Supreme Court, NBC NEWS (Jun. 3, 2019, 3:03 AM), https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491.
[2] Daniel Epps and Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L. J. 148, 148 (2019).
[3] Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, THE WASHINGTON POST (Oct. 8, 2020, 12:13 AM), https://www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/.
[4] Lederman, supra note 1.
[5] Epps and Sitaraman, supra note 2, at 193.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at 194.
[11] Id. at 196.
[12] Id.
[13] Id.
[14] MICHAEL BELKNAP, THE SUPREME COURT UNDER EARL WARREN (2005).
[15] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Gideon v. Wainwright, 372 U.S. 335 (1963).
[16] Sarah Tuberville and Anthony Marcum, Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common., THE WASHINGTON POST (Jun. 28, 2018, 3:00 AM), https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/.
[17] Bush v. Gore, 531 U.S. 98 (2000); Shelby County v. Holder Shelby County v. Holder, 570 U.S. 529 (2013).
