#12 - De-polarizing the Supreme Court
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Today’s post is a natural follow-up to last week’s post. It’s a longer one, so I also cross-posted it on Medium.
An administrative note: A month ago, I said I’d switch to a weekly posting schedule for a month to see how it goes. Now that the month is up, I might shift back to a bi-weekly schedule, depending on interest. Let me know if you have strong opinions.
📰 1 topic: De-polarizing the Supreme Court
News broke this week that Supreme Court Justice Ruth Bader Ginsburg (RBG) was hospitalized (but thankfully discharged), once again raising questions about her health and when she would ultimately retire from the Court.
Well, one answer could be that she’s waiting to see how this upcoming election plays out, crossing her fingers for a Biden victory. Indeed, one of the reasons people are voting for Joe Biden in the upcoming election is because Presidents get to appoint Supreme Court Justices, and Democrats want to ensure we have a liberal Justice for RBG’s replacement:
Look, pragmatically speaking, this reason’s actually not a bad one if you’re a liberal. The truth of the matter is that SCOTUS isn’t only extremely powerful, but in today’s day and age, it’s also unfortunately becoming increasingly political.
The Court as a political weapon
I find it useful first and foremost to distinguish between whether the Court is perceived as increasingly political versus whether the Court's decision-making is actually increasingly political. The former seems unequivocally true.
Look no further than our most recent Supreme Court nominations. In 2016, after Justice Scalia’s unexpected death, President Obama nominated to SCOTUS Merrick Garland, a moderate who was widely regarded as the most-qualified Judge in America not yet on SCOTUS. The Senate, controlled by the Republicans and coming fresh off a rout of the Democrats in the 2014 midterm, stonewalled Obama, refusing to vote on any Obama SCOTUS nominee. At the time, Senate Republican majority leader Mitch McConnell had said, “the American people should have a say in the Court's direction,” so the next SCOTUS appointee must come from the next President, not the current lame duck President. [Interestingly enough, McConnell is now willing to fill a SCOTUS vacancy, even in the wake of the coming 2020 election.] Trump ended up winning the 2016 election and nominated Neil Gorsuch, a conservative, to the Court. Normally, for nominees to get the actual appointment, they need a super-majority of 60 votes in the Senate. With Gorsuch’s nomination, though, the Senate Republicans triggered the “nuclear option,” enabling Gorsuch to get the appointment with only a simple majority 51 votes. He passed with 54.
Fast-forward only 2 years to 2018, when President Trump nominated Brett Kavanaugh to the Court following Justice Kennedy’s retirement. We already know how this one played out: The nomination turned into a national spectacle, with vitriolic diatribes being fired from either side. In the end, Kavanaugh was confirmed to the Court on a 51-49 vote. Only one Democrat voted in favor of Kavanaugh, and only one Republican voted against. Everyone else voted according to party lines.
Now, granted, the interplay between politics and Court nominations isn’t a particularly new thing that’s emerged. During the New Deal, President FDR threatened to “pack the Court” with more Justices because he was frustrated with the existing makeup of Court for continuously striking down his economic reforms. In 1987, President Reagan nominated the ultra-conservative Robert Bork to the Supreme Court. The Senate rejected him largely along party lines (only 2 Democrats voted for him, and only 6 Republicans voted against). That said, it seems that Court polarization, at least with respect to nominations, has escalated to a new pitch in the last few years.
Examining the Court itself
Politicians increasingly brandishing the Supreme Court as a political weapon is one thing, but is the Court able to insulate its day-to-day decision-making from political influence? The evidence here is a bit more mixed. Perhaps one imprecise indication that the Court is polarized is the number of times it has over-ruled controversial precedents. According to Law360, about 71% of over-rulings are made 5-4 under current Chief Justice John Roberts, compared to about 31% under the prior Chief Justice William Rehnquist.
A few factors cut in the other direction, however, and suggest that the Court isn’t as polarized as we might think. For instance, the number of 5-4 decisions could be an indicator of polarization (or the lack thereof). Although the number of 5-4 decisions has been on the rise since 2015 (see chart below), it seems to be concomitant with the number of 5-4 decisions from before 2015. For the ‘19-’20 SCOTUS term, the Court has so far (as of time of writing) released five 5-4 opinions, with about 60% of opinions (some of the most controversial ones) left to release.
Furthermore, an empirical analysis of 5-4 decisions for the 2018-2019 SCOTUS term found a record number of different “alignments” among the Justices. In other words, of the 5-4 decisions, it wasn’t the case that all 5 conservatives constituted the majority every single time. On the contrary, the majority consisted a bunch of different combinations of Justices, with conservative Justices often taking the side of the liberals and vice versa. This indicates that the current bench is flexible and that ideology isn’t a perfect predictor of outcomes. Indeed, RBG herself has said that although the current Court is more conservative than she’d like, the Justices are working well together, and the Court is not a partisan institution. After all, one would hope that Supreme Court Justices, legal geniuses with dozens of years of experience, are reverent of their role as neutral arbiters of the law.
Problems with Court polarization
So, the Court certainly seems like it’s being used as a political weapon by politicians, but the Court itself may not actually be as polarized as we think. Perhaps we might consider ourselves on a path towards increasing public polarization of the Court while the Court must privately protect itself against political temptation. Whatever the case may be, though, we would do well to ensure that the Court is always above the political process, not subservient to it. I see two big problems with Court political polarization.
First, perception of the Court as politically polarized will threaten the Court’s legitimacy. That is, the American people will not see the Court as a legitimate institution and will therefore lose faith in the degree to which the Court can render justice. Justice Elena Kagan has said, “It’s an incredibly important thing for the Court to guard – this reputation of being fair, of being impartial, of being neutral, and of not being some extension of the terribly polarized political process and environment that we live in.” How long can a democratic society after the citizenry has lost faith in the law? Will political actors cease to give credence to the results of any legal proceeding?
Second, if the Court itself actually does become captured by political influence, our liberties are in danger. In Federalist No. 78, Alexander Hamilton wrote his visions for the role of the judiciary in the budding American republic: “There is no liberty, if the power of judging be not separated from the legislative and executive powers . . . Liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.” Put differently, when judges are beholden to political interests, they run the risk of improperly aggrandizing the Congress and the President as opposed to checking them. To make matters worse, the Justices’ life tenure can be a tool for strategic political advancement. Because Justices are on the bench for such a long period of time, a conservative or liberal majority can advance and ossify various legal doctrines falling along a political spectrum.
Eventual recourse
We may not need SCOTUS reform right now, but we might need reform in the near future. Granted, liberals are probably pressing for reform now to counter the current conservative makeup of the Court. On the other hand, conservatives probably feel no urgency, given the major victories they anticipate the Court handing down. Of course, I denounce crying, ‘Reform!’ merely because you’re handed a decision you don’t like, but the preservation of the apolitical integrity of the Court would benefit us all in the long-run, regardless of who benefits in the short-run.
Here are some measures we can consider to de-polarize the Court when the time comes. Note that many of these proposals de-centralize the power of the President and the Senate to appoint Justices to the Court, shifting it to other bodies. Many of these reforms will also probably require constitutional amendments.
Pete Buttigieg’s Court-packing proposal. Expand the size of the Supreme Court to 15 Justices: 5 Republican Justices, 5 Democrat Justices, and 5 Justices, chosen among the prior 10, that serve one-year, non-renewable terms. These non-partisan Justices would be chosen two years in advance, to prevent nominations based on anticipated court cases, and they must be chosen by a super-majority (if not unanimously) of the 10 partisan justices. If the Justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term. One pushback to this proposal is that it would explicitly endorse the partisanship on the Court.
Independent review board. Justices could be held accountable for the consistency in their legal reasoning. In Federalist No. 78, Hamilton wrote that the judiciary uses “neither FORCE nor WILL, but merely judgment.” That is, the Court is supposed to reason from first legal principles, not through any independent political motivations. Of course, the Justices never blatantly say, “I’m politically conservative, so I’m going to strike down abortion!” However, they do dress their opinion up in various (and sometimes inconsistent) methods of constitutional reasoning from case to case in order to arrive at their final conclusion. To rein in this sort of veiled politics, we can have some independent board of legal scholars that reviews each judge’s opinions and reports on their reasoning. This board could also be responsible for removing judges and perhaps even nominating judges.
Limit SCOTUS’ review power. Harvard Professor Mark Tushnet introduced this view back in 1999 when he proposed ‘taking the Constitution away from the courts’ and instead allowing the People to interpret the Constitution. Scholars and commentators have recently also picked up this mantle, arguing that we should remove from courts their ability to decide questions of political importance, like abortion or gay marriage. The problem with this, however, is that it would further weaken the Court’s ability to stand up to and check the other branches of government. Such a move would also be interpreted as the law deferring to politics when, again, the law should be above politics.
SCOTUS Lottery. Proposed by Daniel Epps and Ganesh Sitaraman in the Yale Law Journal, this Lottery would basically pull a panel of nine judges, randomly selected from federal appeals court judges. Each panel would serve for X number of weeks, and each panel would be prohibited from having more than five of the same political party. Granted, this may shift polarization from Supreme Court nominees to appeals court nominees, but there are ~180 appeals court judges. So, their nominations are likely to be less momentous and vitriolic political occasions than nominations to the current Supreme Court.
The Supreme Court is not a stubborn institution dominated by conservatives or liberals, but a collaborative institution of the sharpest legal scholars of our time. Or, at least, that’s what it’s supposed to be and what we should see it as. As the saying goes, lady justice is blind, and as soon as the black robes come on, politics should become subservient to the law, not the other way around. RBG has emphasized that we need to preserve the independent judiciary and the public trust in the Court: “The Court has no troops at its command, doesn't have the power of the purse, and yet time and again, when the courts say something, people accept it.” If the past two Supreme Court nominations are any indication of the future of the Court, however, I fear the day is soon that people no longer see the Court as a trustworthy bastion of legal judgment. Worse, I fear the day that people’s perception of the Court is what it actually becomes: A institution captured by polarization.
📚 5 articles
Justin Walker is nominated to the D.C. Circuit Court of Appeals. This goes along with the post above. Recently, President Trump nominated Justin Walker to the D.C. Court of Appeals, the second most powerful court in America, and just this past week, the Senate Judiciary Committee convened to hold hearings for Walker. Although the Senate hasn’t yet voted on his nomination, this, too, is expected to be along party lines. Chuck Schumer blasted the nomination, calling it a “disgrace” and calling Walker’s views “way outside the mainstream.”
California sues Uber and Lyft over AB5 violations. I wrote about AB5 a couple months ago. It’ll be interesting to see how the litigation plays out. I remain committed to my position that I think AB5 is not good for the health / growth of the gig economy.
25% of AirBnb employees being laid off. Brutal, but I guess that’s just business. What’s nice is the severance pay is generous, and CEO Brian Chesky is working hard to help these employees find new jobs.
Google drops smart city project in Toronto. From the article: “Sometimes it’s easier not to be Google when going after bold ideas.” What a thought-provoking statement. Same can be said about Facebook and its foray into AR/VR, given people’s concerns around privacy. Are Google and Facebook hampering adoption of emerging technologies? Another interesting thought: Perhaps Google / Facebook should pay more money back to shareholders instead of investing in emerging tech companies and tying their (sullied?) brand with those companies. The shareholders can then turn around and invest their money in these emerging technologies. Not sure.
Self-driving car company Zoox is reportedly looking for a buyer. Sad — I’ve always been pretty hopeful for Zoox. When I looked at Zoox, I saw flashes of the ingenuity of the iPhone. Zoox is unique because it re-envisioned the car from the ground up as opposed to outfitting existing cars with sensors. In doing so, it was able to integrate various parts of the personal transportation value chain to achieve better performance and utility. Similarly, in creating the iPhone, Apple re-invented the form factor for the smartphone rather than being constrained by what traditional phones and PDAs did.