Advance with Caution: Analyzing the Implications of Potential Supreme Court Reforms
Elections & Politics Policy Brief #42 | By: Ian Milden | August 8, 2022
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In wake of the Dobbs v Jackson Women’s Health decision overturning Roe v Wade, there have been calls to reform the Supreme Court. In this brief, I will examine the implications of potential reforms. Specifically, I will look at reforms to the nomination process, expanding the court, and term limits.
Reforming the Nomination Process
Currently, the President of the United States nominates someone to be a Supreme Court Justice. The Senate gets to evaluate the nominee and choose to confirm or reject a nominee.
This system helps maintain the system of checks and balances between the executive, legislative, and judicial branches. If you take the power to nominate a Supreme Court Justice away from the President, that removes the Executive Branch check from the Judicial Branch. “The President is also unlikely to give up that power as Presidents view Supreme Court appointments as an important part of their legacy. Presidents have had a recent tendency to nominate people with experience as judges in lower courts or state courts.
Some activists have called for reforms focused on the involvement of interest groups in the selection of nominees.
Activists tend to focus on the relationship between the Republican Party and the Federalist Society, which has recommended all of the current Justices who were appointed by Republican Presidents. Republicans will continue to take the advice of the Federalist Society because Republican voters view judicial nominations as an important voting issue.
Changes in voter behavior would be the most likely thing to discourage Republicans from selecting conservative nominees to the Supreme Court in the future.
Photo taken from: FiveThirtyEight
Expanding the Court
Some activists frustrated with the current makeup of the Supreme Court have called for adding additional Justices to increase the chances of getting their preferred verdicts.
In the early years of the country, Congress altered the number of Justices on the Supreme Court. However, this number has remained at nine Justices since 1869 and has become an accepted norm. In 1937, Franklin Roosevelt made the most notable attempt to expand the Supreme Court when he had a supermajority in Congress.
Not only did he fail to expand the court, but he also divided his party. Opposition from the American Public helped defeat Roosevelt’s plan to expand the Court and it remains unpopular among Americans according to a PBS/NPR poll.
Even if a plan to expand the Supreme Court passed, there would be little to prevent the Supreme Court from expanding again when Congress and the Presidency come under Republican control. Continual expansion of the Supreme Court dilutes the influence of Supreme Court Justices and harms the Judicial Branch’s ability to be an effective check on the Legislative Branch.
Proponents of term limits argue that this will allow for the easier removal of Justices that they don’t like. However, the consequences of term limits are not well-understood by the public. There have been peer-reviewed academic studies of term limits in state legislatures, which can provide some insight into the potential consequences of term limits on the Supreme Court.
A study examining the effect of term limits on polarization found that term limits led to an increase in partisan polarization because legislators who were termed out of office would be replaced by more partisan successors.
Legislators and candidates also became more dependent on party structures to get through critical tasks such as fundraising to get and maintain their positions. Additional studies on term limits find that term limits harm the capacity of legislators to build subject matter expertise and relationships with other legislators. If term limits were applied to the Supreme Court, the existing body of research on term limits suggests a more partisan and divided Supreme Court that may not have the expertise to handle complicated legal issues.
For an alternative approach to the issue of Supreme Court reform, please see the US RENEW NEWS Op Ed “It’s Time to Reform the Supreme Court.