If you’re serious about changing the Supreme Court—through packing, term limits, or anything else—you need to understand the consequences, says court expert Daniel Epps
Most people who think about law and study the court carefully think it’s something in between those two. There are instances where we can all read the same statute and think it means the same thing, and there is a correct legal answer. But then as the stakes get higher and we’re talking about constitutional law, which often involves the interpretation of extremely vague texts that were written more than 200 years ago, there’s much less common ground and consensus.
There’s other criteria you might consider, too, like “neutrality.” Any Supreme Court structural reform is almost certainly going to create immediate short-term winners and losers. There are some reforms that you can only really think of as just one side taking naked partisan advantage because it can, versus reforms that are trying to actually divvy up the spoils in a somewhat fair way.
I personally think that it was pretty extraordinary to refuse to even have a hearing after Obama nominated Garland. And that alone would have provided a fairly good justification for further escalation, because if we’re going to have a system where it just depends on who happens to be president when a nomination opens, we should at least just let the presidents fill the nominations that open when they’re president.
To make that system work, there are some other things you’d have to do. One is some kind of supermajority requirement for certain kinds of rulings so that a bare majority is not enough to, say, declare the Affordable Care Act unconstitutional. And then you could also accompany that with some kind of partisan-balance requirement, like a limit on any given panel to the number of justices appointed by a president belonging to any one political party.
Given her values, Justice Ginsburg made, I think, a pretty serious error in judgment in not stopping stepping down in 2013 or 2014 when Democrats had the Senate and Obama was president. It was anything but certain, especially given her health history, that there was going be a better opportunity to appoint a Democratic replacement for her. But she chose to stay on. She made a gamble, and that gamble really didn’t pay off.
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