The Biden administration needs to change political reality, not just accept it.
Late in the lead-up to the 2020 presidential election, as Mitch McConnell rushed to replace Ruth Bader Ginsburg with Amy Coney Barrett, the left began pushing Joe Biden to endorse adding seats to the Supreme Court. Biden, in response, did what politicians do when faced with an issue they don’t want to think about: He promised to create a commission to study the issue.
But in total, the report is a thorough and at times exciting tour through ways the court could be restructured. I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment and many reasons to mistrust it. The process for picking appointees is thoroughly politicized. The process by which seats come open and the court is refreshed is thoroughly politicized, save when death intervenes with a justice’s preferred moment of retirement.
But you can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences. If Democrats manage to pass a bill adding new justices, Republicans would match or exceed it as soon as they were restored to power, and on and on. For a solution to hold, it needs to be defensible beyond this moment in American politics.
The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices. Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.
More radical is the idea of a “balanced bench.” The commission does not discuss this idea at any length, save mostly to criticize it, but I think it’s worth considering. The balanced bench is a proposal by Daniel Epps and Ganesh Sitaraman, both law professors, to divvy up Supreme Court seats in a new way: Both parties would get five justices, and then those 10 justices would be called upon to unanimously or near-unanimously agree on another five justices.