Breaking the Supreme Court to fix it

Pete Buttigieg wants to run his presidential campaign on reforming the Supreme Court. As NBC News notes, other candidates have talked about it, but no Democratic hopeful has made that issue as central to their campaign as "Mayor Pete." The relatively straightforward court-packing schemes, suggested by some in Democratic circles, would hardly solve the problem. However, Buttigieg especially proposes to fix what isn't actually broken in the first place, and to break further what's been bent. Buttigieg's idea of reform would permanently cripple the court's reliability, further increase its insularity, and make its flaws even worse rather than improving them.

It's no secret that the Supreme Court has become a central argument in presidential elections. In 2016, both Hillary Clinton and Donald Trump campaigned extensively on the open seat left by the death of Justice Antonin Scalia, which Barack Obama attempted to fill by nominating Merrick Garland. Senate Majority Leader Mitch McConnell refused to move forward on Garland's nomination, setting up a showdown over the direction of the court in the general election.

It's also no secret that the high court has been the biggest political spoil in presidential politics for decades, nor is the reason why. Before Roe v Wade, court appointments, if still part of a spoils system, had a largely non-partisan tenor. Objections to Supreme Court appointments had more to do with competence and corruption than ideology, and were therefore relatively rare.

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The last of the pre-Roe challenges bear this out. Lyndon Johnson's 1968 nomination of Justice Abe Fortas to become chief justice got blocked on questions of improper payments, although Fortas' votes on obscenity cases also became an issue. Richard Nixon's nomination of G. Harrold Carswell as Fortas' replacement failed on the basis that Carswell wasn't a terribly impressive jurist on the lower courts. His reversal rate at the district court was 58 percent, prompting an unusual defense from Nixon ally Sen. Roman Hruska.

"Even if he were mediocre," Hruska declared, "there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos."

Needless to say, Carswell's nomination failed despite Hruska's famous defense of mediocrity. That seems quaint these days after more than 30 years of pitched battles over Supreme Court nominations, starting with Robert Bork's appointment in 1987 and running all the way through last year's confirmation battle over Brett Kavanaugh. The judiciary wars have focused entirely on partisanship and litmus tests on abortion, with extended debates over stare decisis as the proxy for both.

The Supreme Court and the nomination process has run aground on partisanship. Buttigieg and other Democrats prescribe the hair of the dog as the remedy. Mayor Pete wants to expand the Supreme Court to 15 seats, and then to have the two main political parties appoint five jurists each. The remaining five would be selected by the first ten justices. This is not only a recipe for more partisanship, it's also a recipe for jurisprudential disaster.

First, it's unclear why this plan would require an expansion of the court from nine seats – set by statute as well as custom – to 15. Why not have the current nine seats, split into three groups of three? Other than creating the potential for reams of new concurrences and dissents, the expansion serves no purpose, and Buttigieg doesn't explain its necessity. It would inevitably complicate the process of decision-making and even oral arguments.

The plan also does nothing to uncomplicate the current appointment process. How likely is it that the nominations by each political party would get a free ride to confirmation? In today's partisan atmosphere, the odds approach zero. This format won't solve the problem Buttigieg is trying to address; it will make it worse by opening up the process to more seats. That doesn't even address the fact that the two political parties are not governing bodies in the first place. Congress appoints commissions with bipartisan splits, but that is performed by elected officials for tasks within its own purview.

The worst aspect of Buttigieg's plan is the idea that justices should appoint their own colleagues on the court. The federal judiciary enjoys lifetime appointments to keep the jurists from bending to political pressures, but at least every judge at all levels has to be appointed and confirmed by elected officials. Justices appointing and confirming justices will at best create a star-chamber effect. In practice, the 10 partisan justices will end up getting selected on a new litmus test – their willingness to appoint politically minded and partisan judges from the lower courts. And since Buttigieg envisions either unanimity or a supermajority among the other 10 for confirming those jurists, the likeliest result will be continuing vacancies that stretch out for years.

In comparison, the more straightforward court-packing plans do less damage but still avoid the real problem. Partisanship in the judiciary will not get resolved by changing the number of seats on the Supreme Court. It will only make partisan battles more constant, and will incentivize each succeeding administration to expand the Supreme Court further. Eventually, that will result in a quasi-House of Lords and completely destabilize the judicial process.

None of this addresses the actual issue that has made the Supreme Court so polarizing. Starting decades ago, well before Roe, the court adopted a "living Constitution" approach that encroaches on legislative and executive jurisdiction. Woodrow Wilson first pushed this vision of courts that would bypass Congress and expand federal power, and it caught fire during Franklin Delano Roosevelt's New Deal. That has corroded the court's ability to act as an impartial arbiter on behalf of the Constitution, transforming it instead into Wilson's vision of a Supreme Court as a "constitutional convention in continuous session" without any buy-in from the people being governed by its rulings. It is that power that makes the Supreme Court a powerful political prize, and it has transformed presidential and senatorial elections into near-proxies to shape this super-legislature.

Buttigieg's "reform" would complete the Supreme Court's usurpation of the legislature. The best reform would be to find jurists willing to dispense with the Wilsonian "living Constitution" approach and return the judiciary to its proper relationship between the legislative and executive branches. But that's a change neither party seems particularly interested in.