Courting Change

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Dr. Malcolm Cross

President Biden has appointed a commission to study proposals to reform the Supreme Court and its role in American politics.  Herewith are reasons for reform, as well as several ideas the Commission should, and should not, consider.

The need for reform is obvious.  On the one hand, the Supreme Court has acquired—and exercised—enormous power to shape the evolution of modern society.  In the last 70 years The Supreme Court has issued decisions to end racial segregation and to create rights to abortion, to more due process for criminal defendants, and to same sex marriage.  The impact of the Supreme Court on American society and politics is greater than that of most presidential administrations.

Yet the Supreme Court’s decisions are issued by nine justices, appointed for life, and far less accountable to the American people than presidents and members of Congress.  Their decisions, whether good or bad, can be overturned only with the greatest difficulty, normally by constitutional amendment.  Little wonder that the politics of appointing Supreme Court nominees has become so poisonous:  Parliamentary maneuvers may be used to block presidential nominations, while character assassination through accusations that nominees are either sexual perverts or religious zealots have become more and more common.  Clearly reform is needed, and President Biden is to be commended for at least jump-starting the process with his commission, although it remains to be seen what proposals it will actually study and present.

One proposal on which Biden’s commission should waste little time is “Court-packing,” or expanding the Court to accommodate current political interests.  The weakness of court-packing schemes can best be seen by looking at the comments made about such a scheme recently proposed by congressional Democrats.

The scheme in question is to add 4 new seats to the 9-member Supreme Court.  Its purpose is obvious:  The Supreme Court currently has 6 members appointed by Republican presidents and only 3 appointed by Democrats.  Adoption of this scheme by Congress would allow Biden to appoint 4 more members, giving the Supreme Court a majority of members appointed by Democrats.

House Speaker Nancy Pelosi says the House will not consider any bill presenting this scheme and, indeed, it has attracted little support among either responsible members of Congress or the general public.  Its flaw is obvious.  Once the Republicans regain the federal trifecta—both chambers of Congress and the White House as well—they could further expand the size of the Supreme Court with the creation of even more seats to be filled by the next Republican president. Since the Constitution imposes no upper limit on the size of the Supreme Court, the Democrats could once again pack it when they regain the trifecta, with further expansion by the next Republican trifecta, and so on.  The Supreme Court would soon become merely a third chamber of the Congress.

There are, however, other ideas concerning both the power of the Supreme Court and the potential longevity of its members which Biden’s commission should consider:

First, it should explore constitutional provisions giving the Congress the power to limit the sort of cases on which the Supreme Court may rule, and thereby reduce both the Supreme Court’s power and the bitterness such power inspires.  To develop procedures and guidelines for Congress to act should require no constitutional amendments.  However, amendments may be necessary if several other proposals to be considered, especially term limits for Supreme Court justices.

The Constitution currently says that Supreme Court justices are to serve for “good behavior,” and provides no means of removing justices except through the impeachment process.  The Congress has interpreted the Constitution to mean justices normally serve for life or for at least as long as they want to.  Moreover, the Congress has established the principle that it will not remove a justice or judge on a lower court unless there is clear evidence that the jurist in question has committed an actual crime.  Neither incompetence nor any other character flaw is currently considered a justifiable reason for removing a federal jurist.

But both the potential longevity of Supreme Court justices’ terms, and the practical inability to hold them accountable for any decisions or conduct other than criminality, add to the venomous way with which Supreme Court nominations are sometimes considered.  Amending the Constitution to impose term limits may reduce the poison frequently injected into the nomination process.

But the best way to check the power of the Supreme Court is not by controlling the number of seats it has or the identity of its membership, but to more proactively challenge the decisions it issues.  The commission should propose ways and means to help the democratically elected Congress and state legislatures  become more vigorous and proactive in challenging Supreme Court decisions—even overturning them by constitutional amendment if necessary.  Challenging Supreme Court decisions as prescribed by the Constitution is far more healthy and democratic than playing games with the number of seats on the court, or engaging in either parliamentary chicanery or character assassination.  Vigorous nationwide popular debate, leading to action taken by our democratically elected members of Congress and state legislatures, will be the most consistent course of action consistent with both the spirit and the letter of the Constitution.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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