A de-escalating constitutional alternative to court-packing

Hoping there will be a Biden administration and Democratic control of the Senate next year, many voices on the Left are calling for Democrats to add seats to the Supreme Court once Senate Republicans confirm Judge Amy Coney Barrett. That court-packing impulse is a response to a crisis that is real. Something is deeply wrong with the politics of court appointments and the functioning of a judicial branch that is not meant to be partisan or political. But there is a different and better constitutional solution to the problem.

The jurisdiction of the Supreme Court is specified by Article III, section 2 of the Constitution, which says that, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” As a practical matter, all of the cases we think about coming before the Supreme Court are a part of this appellate jurisdiction. The Court hears appeals of decisions that begin in lower courts, and the Court answers whether some law or other action of government violates the Constitution.

For example, the Court found that laws barring marriages between two people of the same gender violated the Fourteenth Amendment’s Equal Protection Clause. The Court found that the Affordable Care Act’s individual mandate did not violate the Constitution’s Taxing and Spending Clause. And, the Court found that state laws criminalizing abortion violated the Fourteenth Amendment’s Due Process Clause. In all of these cases, our Supreme Court acted on its appellate jurisdiction. Most of the Supreme Court’s business is judicial review, acting as a constitutional court to settle cases and set limits on our political debates by telling us what the Constitution means.

Interestingly, the judicial branch was not created as a constitutional court originally under the Constitution. Instead, the Court gave itself the power of judicial review with its 1803 Marbury v. Madison decision and, for the most part, the development has been a healthy one. Not only did judicial review — the use of the appellate power to interpret the Constitution — take important questions away from the competing, political branches of government, but it also gave the judicial branch some stature against the legislative and executive branches. Judicial review balanced the scales of our political system.

Until recently.

The roiling, polarizing dynamics of our abortion politics have politicized the judicial branch to a dangerous degree, and the time has come for a solution that will carve out some nonpartisan, deliberative space for the Supreme Court. Rather than packing the Court with more liberal justices, a President Biden could convene a bipartisan, blue-ribbon commission to study how Congress might regulate and limit the Court’s appellate jurisdiction to slow the pace of the partisan struggle over the Constitution’s meaning. This would reduce or remove the passion from the tumult over Supreme Court appointments. A Court that does less and takes more time to do it would be a much less inviting object of partisan struggle.

As just one example of how this might look, Congress could enact a statute defining stare decisis and imposing a minimum interval between Supreme Court reversals of precedents. We all would live with Supreme Court decisions for longer, and there would be other, unintended consequences. But perhaps they might not all be bad. Without a Supreme Court capable of hearing every appeal in every test case concocted to reach the Supreme Court, a patchwork of conflicting precedents would become authoritative in the thirteen U.S. appellate circuits. This would be confusing and, in some cases, unfair, but it also would permit small-scale trials for different solutions to difficult constitutional questions before the Supreme Court settled them definitively for the nation. Certainly, such a solution also would force the political branches back toward compromise without a Supreme Court to which they can race for a final victory (and which they can game for an outcome).

Though this is a constitutional solution, the legislative and executive branches conspiring to limit the authority of the judicial branch hardly seems ideal. It is not. But our situation is dire, and I suspect most federal judges would agree readily that the judiciary’s perceived impartiality and authority is at an all-time low. Something must be done to end the Supreme Court’s captivity to partisanship and restore our confidence in it.

Before we consider a court-packing scheme that would trigger a next phase of escalation in the struggle over the Supreme Court, perhaps this de-escalating step is worth considering instead.

Steven P. Millies, a political theorist, is associate professor of public theology and director of The Bernardin Center at Catholic Theological Union in Chicago. Follow him on Twitter @stevenpmillies