Editor’s note, July 2: The following is an updated version of an article that originally appeared in Vox in October 2020. We are republishing it with revisions to reflect the Court’s most recent term.
The Supreme Court’s just-ended term was a bacchanalia of reactionary indulgence. Roe v. Wade is dead. Gun laws across the nation are now in jeopardy. The court breaks down the wall separating church and state – and is not afraid to tell easily debunked lies to achieve this goal. The Court’s GOP-appointed majority limited the EPA’s authority to fight climate change and gave itself unlimited veto power over any federal regulations.
The worst is probably yet to come. Three rulings on “shadow files” in the last term suggest the Court is about to reduce safeguards against racist manipulation. Another case looming next term, involving North Carolina’s fraudulent congressional maps, will likely give Republican state legislatures the power to defy their state constitution when writing election laws. And that’s after the Court spent the last decade dismantling the Voting Rights Act and stripping federal courts of any power to fight partisan gerrymanders.
The Republican majority on the Court isn’t just issuing bold conservative policy orders, it’s undermining democracy itself.
In fact, the Republican Party owes its control of the Court to an anti-democratic system that effectively gives additional votes to Republicans. Only three justices in American history have been appointed by a president who lost the popular vote and confirmed by a group of senators representing less than half the country. All three were appointed by Donald Trump and all three are currently on the Court.
Neither Congress nor President Joe Biden, however, are powerless against the anti-democratic Supreme Court. The elected branches have broad powers to rein in the rogue judiciary or limit the scope of at least some of the Court’s decisions. The biggest of those powers is court packing — adding extra seats to the Supreme Court to dilute the votes of Trump justices who lack democratic legitimacy.
Realistically, Democrats lack the votes to push this or any other significant Supreme Court reform through Congress right now. Such a proposal would require changing or eliminating the filibuster, since it is almost impossible to imagine 10 Republican senators voting to reduce the power of a Republican-controlled institution. And at least two members of the narrow Democratic majority in the Senate oppose filibuster reform.
But just because judicial reform isn’t politically viable right now doesn’t mean it isn’t worth considering, especially if Democrats somehow manage to muster a larger majority in a future Congress. There are several options for dealing with an increasingly biased Supreme Court. Here are 10 of them.
1) Judicial packing
Let us first remove the greatest weapon in the arsenal of democracy. If Congress has the votes, it can simply add more seats to the Supreme Court. President Biden will then nominate several new judges to fill those vacancies, subject to confirmation by the Democratic Senate.
Although the Constitution provides that there must be a Supreme Court, it does not say how many justices will serve on that court. Over the course of American history, the Court has had as few as five seats and as many as 10. A bill currently pending in Congress would add four seats to the Court, turning a 6-3 Republican majority into a 7-6 Democratic majority.
Still, there are several good reasons for Democrats to be wary of assembling the Court, at least as an initial tactic to rein in the Court’s current majority.
One is that getting a judicial packing bill through Congress would likely require extremely high levels of public anger against the Supreme Court. Shortly after President Franklin D. Roosevelt won his first reelection bid in a historic landslide, he proposed adding seats to the Supreme Court as a solution to the reactionary justices who sabotaged many of his New Deal policies. But even at the height of his political power, Roosevelt struggled to build support for his plan.
Indeed, some historians blame Roosevelt’s judicial packing proposal for breaking up his coalitions and preventing him from pushing bold policies through Congress. Perhaps because of this history, Biden has been reluctant to accept packaging in court in the past.
The other problem with adding seats on the Court is that, absent a constitutional amendment limiting the number of justices on the bench, Republicans could potentially retaliate if they regain control of Congress and the White House.
Just as a Democratic Congress could transform a nine-member Republican-majority court into a 13-member Democratic-majority court, a Republican Congress could add any number of seats to the court if it had the votes — and that new majority could be even more hostile to democracy from the current crop of judges.
Ways to change the composition of the Supreme Court without giving a clear advantage to one side
Assuming the next Congress doesn’t have the votes to simply add new seats to the Supreme Court and let a Democratic president fill them, Congress still has several options that could change the Court’s makeup in ways that aren’t so overtly partisan.
2) “Balanced” vessel
One of the leading alternatives to simply adding and filling new seats on the Court with Democratic justices is still a form of court packing. But the goal is to create a politically balanced court in which no one party dominates.
In a 2019 paper, law professors Dan Epps and Ganesh Sitharaman proposed a 15-judge Court made up of five Democrats, five Republicans and five justices drawn from the remaining 10. The idea behind that proposal, now Transportation Secretary Pete Buttigieg on time of his bid for the 2020 Democratic presidential nomination is that the balance of power on the Supreme Court will be maintained by moderate justices acceptable to both political parties.
There are a number of concerns about this proposal. One is that it is likely to be declared unconstitutional. The constitution gives the president the power to appoint new judges; it does not give that power to a panel of 10 other judges.
A more fundamental problem is that any attempt at judicial packing, even an attempt to establish a centrist Supreme Court, is likely to anger Republicans and provoke retaliation if Republicans regain control of the government. And there is no guarantee that the centrist court will overturn the Roberts court’s previous rulings undermining voting rights. Democrats could trigger all the disadvantages of packing the Court without reaping the benefits of a more democratic system.
But if there was ever enough energy to make a 13-judge Court with a Democratic supermajority a real possibility, perhaps Republicans would be willing to negotiate a compromise—the kind of compromise that could be written into a constitutional amendment if both sides agree with him. And a balanced proposal by the Court, like that proposed by Epps and Sitaraman, could potentially be that compromise.
3) “The Supreme Court Lottery”
A separate proposal by Epps and Sitharaman would transform the Supreme Court from a permanent nine-judge bench to a rotating bench of judges. Those justices will take a brief spin on the Supreme Court before returning to their regular jobs on a federal appeals court.
The basic idea is that each of the roughly 170 sitting federal appeals court judges be appointed as an associate justice of the Supreme Court. Then, every two weeks, nine of those justices would be randomly selected to serve on the nation’s highest court. In another two weeks, a different panel of nine will be selected. (In this system, current judges may also be eligible to rotate on a temporary panel of nine, but they will no longer sit permanently on that panel.)
It may seem random, but that’s pretty much how the federal appeals courts work. Most cases in the Courts of Appeal are heard by randomly selected three-judge panels, although a larger panel consisting of all sitting judges on the court will sometimes hear exceptional cases.
One problem with this proposed lottery system from a Democratic (and Democratic) perspective is that the rotating Supreme Court, at least in the short term, will more often than not be controlled by Republicans who may share the current Court’s hostility to the rights of voice. There are currently 172 active United States appeals court judges, and 92 of those are appointed by a Republican president, although Democratic appointees could control a majority of those judges for the rest of Biden’s current term if Democrats retain a majority in the Senate. which will confirm Biden’s nominations.
Another risk is that a commission of anti-democratic radicals will be chosen at random to hear a crucial voting rights case – or that such a commission will allow a contested election. Suppose, for example, that the “Supreme Bench” that happens to be sitting when Donald Trump tries to overturn the 2020 election includes justices like Naomi Rao, Andy Oldham, Edith Jones, Kurt Engelhardt, and Clarence Thomas—all of whom are known for taking extraordinary liberties with the law to promote conservative causes. This panel may very well give Trump the presidency.
In the long run, however, a rotating Supreme Court could, in the words of Epps and Sitharaman, “depoliticize the appointment process by making confirmations more numerous and less consistent.” And it would mean that individual justices “would no longer have the ability to shape constitutional law for a generation by strategically timing their retirements” so that they would be filled by a president of the same party.
4) Terms
Another way to prevent justice from…
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