A solution to the politicization of the Supreme Court

Joe Biden said recently he would consider rotating Supreme Court justices, citing scholarly work like ours.

Former Solicitor General Charles Fried recently invoked Winston Churchill, claiming that expanding the number of seats on the Supreme Court “is a bad idea, except for all the alternatives.” Mr. Fried is correct that expanding the Supreme Court is likely to bring about a retributive tit-for-tat political battle unbecoming of an institution meant to be neutral and bound by the Constitution. If such a battle were to occur, the reservoir of goodwill the Court has long enjoyed would likely be quickly depleted.

Fried suggests the potential Biden administration wait to see if the Court self-corrects before adding seats to the bench. Indeed, there is good reason to suspect the Court may try to avoid the political spotlight, at least in the near future. But after nearly a half decade of the Senate’s continuous, unprecedented political wrangling, there’s little wonder that the idea of packing the Supreme Court is gaining steam.

There’s a better alternative that acknowledges the reality of how political actors have treated the Supreme Court since the mid-1980s, when Fried’s actions ushered in a sea change to the Solicitor General’s role before the Supreme Court. It’s an alternative that would assuage our unease with the seemingly never-ending politicization of the Court, create a procedure that makes Supreme Court vacancies knowable, regular events, while simultaneously respecting the concerns of the Constitutional Framers.

We could appoint a circuit court judge to the Supreme Court for a term of 18 years, after which the justice would return to the circuit court. Such a process does not run afoul of Article III’s strictures so long as the judge’s “office” as a federal judge continues without diminishing his or her pay. And staggering each of the nine seats allows for a new jurist to be elevated every two years. This solution insulates federal judges from unwarranted political removal while transforming Court vacancies into foreseeable events that allow voters to make an informed decision when they cast their ballots.

Since Justice Antonin Scalia’s passing in 2016, there have been numerous debates over the political and judicial framework envisioned by our Founders, who were wary of the potential to abuse power through partisan interpretations of the law.

To avoid such abuse, the Antifederalists proposed a judiciary with limited power to make changes to the law or to strike down democratically-derived decisions made in the legislature, arguing this would insulate the republic from judges who might reflect specific interests over national ones.

The Federalists proposed a powerful judiciary that would be capable of resisting the whims of the other branches and the citizenry should they run counter to the interests of the republic.

Each view reflected two poles of democratic republics: does one rely on the citizenry to check the judiciary and ensure that the Constitution is being interpreted fairly? Or do we rely on a powerful judiciary to provide the citizenry with its right to participate in a democratic state, even if it runs counter to popular opinion? Democracy operates in the first instance as a guiding force for judicial matters, protecting the state and citizenry through popular oversight. In the second, democracy constitutes the ability to delegate legal authority to an institution tasked with protecting the citizenry.

Ultimately, the founders’ debate was resolved not through compromise, but through the establishment of judicial conception: Permanent appointments and broad constitutional authority.

Echoes of this founding-era debate continue to simmer beneath the surface of today’s judicial conversations. The politics surrounding Supreme Court appointments, voting behavior, and retirements bear out the Antifederalists’ concerns and confirm the relevance of this constitutional debate. If the impossibility of appointing completely neutral, objective jurists points toward the prescience of Antifederalist concerns, then there is a pressing need to revisit this debate.

Indeed, calls for change have only strengthened beginning with Scalia’s death and have continued through to Ruth Bader Ginsburg’s passing. An elevated term of years acknowledges the reality of modern judicial politics and is a novel, nonpartisan solution that — importantly — reconciles the debate between the Federalists and Antifederalists.

Scott S. Boddery is an expert in judicial politics and an assistant professor at Gettysburg College. Charles A. Phillips is a political theorist who has taught at Gettysburg College and Franklin & Marshall College.