(Editor's Note: This piece is coauthored by Lee Drutman and first appeared in the Washington Post on July 10, 2018.)
With Monday night’s announcement that he’s nominating D.C. Circuit Judge Brett Kavanaugh to fill the seat vacated by Anthony M. Kennedy, President Trump moves one step closer to shifting the direction of the Supreme Court for a generation or more. As the swing vote in closely divided cases, Kennedy single-handedly decided some of the most controversial issues in America. Trump’s decision to tap Kavanaugh leaves Republicans hopeful that more of those cases will now be decided in their favor.
It’s not hard to see where this is headed. Republicans are already preparing to spend millions of dollars on a political battle to help cement a 5-4 conservative majority on the Supreme Court by confirming Trump’s nominee. Liberals will, in turn, lose their minds. When Democrats next gain unified control of government, they could pack the courts. It’s the logical tit-for-tat for the “stolen” seat President Barack Obama nominated Merrick Garland to fill. But then what happens? Play another round of tit-for-tat, and the future looks unsustainable. That so much is riding on one Supreme Court seat is a testament to how broken our politics are.
There is only one way to get out of the vicious cycle ahead of us: We need to stop thinking of the Supreme Court as the final arbiter of every controversial issue in American politics. Short of that, we must make it harder for the court to act decisively in controversial cases. This could be done by requiring an even number of justices picked by a majority and a minority in the Senate. Let the court deadlock more, and let democracy do the hard work of politics, instead of lawyers and judges.
The reality of a deadlocked Supreme Court means that lower court decisions stand, even when they conflict. But that isn’t the end of the world. Even with nine justices, the Supreme Court chooses to hear only about 80 cases each year. Most of the judiciary’s work occurs at the district and circuit court levels. And while it’s true that an evenly divided court won’t be able to resolve circuit splits, such divisions among the nation’s jurists are a sure sign that we have on our hands a political, not a legal, question. Which means a job for Congress, not the courts. And we’ve survived periods in which the Supreme Court was evenly divided in the past: Most recently, the court had only eight justices between the death of Antonin Scalia and the confirmation of Neil M. Gorsuch. Still, the republic didn’t collapse.
An even balance on the court would make it less likely that any one justice will again possess the disproportionate dominion on American politics Kennedy had at the end of his career. And it will leave more issues to Congress, lower courts and the states to decide. The Supreme Court will instead be left to decide two sets of cases: (1) genuine constitutional questions, where the legal issues transcend current policy fights; and (2) questions where conservatives are able to convince liberals, and vice versa.
That would leave the court to preserve its legitimacy to act authoritatively to interpret the Constitution when it absolutely needs to. And it would encourage more creativity and coalition-building among justices and legal scholars, who should seek new ways of litigating complex social and political questions.
The quickest way to create deadlock on the court would be to not fill Kennedy’s seat. But to add fluidity and dynamism to the court in the future, each subsequent Congress (starting with the 116th) could add two justices, one agreeable to the Senate majority and one agreeable to the minority, each for an 18-year term, until the court is at 16 members. As the court grows, let a random draw of four justices picked by Republicans and four picked by Democrats decide each case. Regularizing appointments would further drain the stakes of any one nomination and ensure that, as Chief Justice John Roberts once put it while arguing for 15-year term limits, “federal judges would not lose all touch with reality through decades of ivory tower existence.”
The case for a detente in the confirmation wars accepts that the “the other side started it” is a turtles-all-the-way down argument, with the turtles sitting on top of the Judiciary Act of 1789, which first set the number of justices at six. Or maybe the Judiciary Act of 1801 (repealed in 1802), which appointed a slew of “midnight” Adams administration judges and shrunk the number of justices down to five, so the incoming Jefferson administration wouldn’t be able to appoint a justice. Or maybe Marbury v. Madison (1803), which expanded the power of the courts to nullify legislation on constitutional grounds.
Or maybe it was the Tenth Circuit Act of 1863, which upped the Supreme Court to 10 justices (from nine, following a 1837 law), or the subsequent Judiciary Act of 1869, which put the number back to nine. Or maybe it was Franklin Roosevelt’s plan to pack the courts that politicized the judiciary. Or the litany of landmark decisions by the Warren court (1953-1969), or Roe v. Wade (1973), that gave liberals the hollow hope that the courts would be their savior and mobilized conservatives into seeing the judiciary as the anti-democratic battering ram of too-fast social change. Then Bork. Then Garland. Then the end of the judicial filibuster. And now, well, you get the idea.
Letting this moment pass without reforming the way we pick Supreme Court justices could have dire consequences for our democracy by continuing to divert the most controversial fights to the place where their ultimate arbitration is least likely to generate legitimacy — the courts.
For decades, conservatives have complained about judicial supremacy intruding onto politics, leaving decisions that belonged in the hands of the people and their elected representatives to nine lifetime appointees. Liberals, now for the first time in 80 years, are coming to understand why that’s such a problem.
We’re at a unique moment when everyone should be open to change. It’s a moment for senators to bind together and think about the political legacy they’re leaving. Now is the moment to defuse the hypertrophy of the Supreme Court as the final arbiter of complicated political fights, and return politics to where it belongs: to the public.