What Is The Court, And What Does It Do?
The Supreme Court of the United States takes a powerful and central role in the most important debates in the country. It is because of the Court that abortion is legal on a federal level, that George W Bush became President in 2000, that segregation was legalized (and then later ruled illegal) and that an individual, rather than a militia, has the right to bear arms. In recent years, political rhetoric has focused in on the perceived over-politicization of the ideally impartial Judicial system. The balance of the Court is currently split 5–4 in favour of Conservative Constitutionalism, with Justice Brett Kavanaugh being the latest to join the Conservative ranks. Many Americans now lament the broken appointment process, identifying it as slow, inefficient, and almost entirely partisan. In a recent NBC poll, 6 in 10 Americans were discovered to believe that the Court appointment process is “too politicized”. The Democrats have a plan to solve this.
Pete’s Plan
More specifically, Pete Buttigieg does. Other Democratic nominees have also voiced concern over the Court, but Pete is the only one so far to have made it central to his campaign, promising to start reform from “day one” of his Presidency. Pete’s plan is surprisingly simple, and actually preserves part of the Court’s partisan aspect. Pete wants to add 6 new judges, upping the total to 15. He hopes that there will be 5 Democrats, 5 Republicans, and 5 “independents”, who are appointed by the other 10 and serve terms that are 1 year long and non-renewable. He hopes that this “most intriguing” reform will change the “almost nakedly political institution” and make it more representative of what he believes the Court should be.
Clear Benefits?
On the surface, this plan looks good. Pre-supposing that the partisan nature of the Court is an issue in the first place, making sure that there is an ideological balance prevents blatantly one-sided rulings from getting through. Furthermore, the introduction of the independent judges would hopefully help to solve party-line problems by voting for those who have the most convincing argument, not those who are most ideologically pure. Unfortunately, the plan is too good to be true and too simple.
Divisions — “Living, Breathing”, or “Dead, dead dead” and Party Lines
Firstly, there is no guarantee that the institutional gridlock and division that has long been part of the Court will be solved by these changes — the Court will still be largely based along party lines. For as long as the Court focuses not on interpreting the Constitution correctly, but as their party wants, important changes will remain not only controversial, but unpalatable and distrusted by many. Any Court ruling that leans towards one side of the political spectrum will undoubtedly be met with anger from the other side and questions over the legitimacy of the Court. Roe v Wade is a perfect example here — despite the 7–2 majority (with the two dissenters being from different parties!), anger still exists, and arguably has increased in recent years, over the issue. Recent calls to overturn Roe v Wade would mean not only overturning a Court precedent — something incredibly impactful and rare, but also embody the party-political division in the Court. Furthermore, division in the Court also comes in the form of how one ought to interpret the Constitution. Is it a “living, breathing document” as liberal justices see it, and therefore one that is meant to adapt and be viewed in the light of the modern world and its creations? Or, rather, is it, as Antonin Scalia, former Supreme Court Justice said, a “dead, dead, dead” document? There is a political fear that the Court is returning to viewing the interpretation of the Constitution as being based on how it was “originally written” and intended, and until we work out how the Constitution should be interpreted, only then can we work on healing division in the Court that exists along more than just party lines.
How would it pass ?—Constitutional Amendments, Conservatism, and Public Opinion
George Washington called party politics a “formal”, “permanent”, and “frightful despotism”, feeling the need to “warn…[us] in the most solemn manner against the baneful effects of the spirit of party”. Secondly, it is doubtful the reform will pass anyways. This matters because the palatability of a plan and its practicality is, in this situation, just as important as what it aims to achieve. Constitutional scholars have said that Pete’s reforms would require a Constitutional amendment, as they fundamentally change the way that justices are selected, a matter far more serious than just passing a law to up the number of judges. The Republicans have no incentive to reform the Court, being guaranteed a majority for the foreseeable future. Moreover, they have a very high level of representation in state and federal governments, partially due to the fact that they are appealing to many of Americans, of course, but also due to effective gerrymandering on the behalf of some. Even if Court reform were to benefit the Republicans, the role the party has taken on more recently as the defenders of traditional American values and institutions means that Republican politicians would also have to be convinced that reform is worth it publicly, as many of their voters could see such a large reform as a betrayal of Conservatism in its current form. The fact that a supermajority is needed — that is, 67/100 Senate members — for a Constitutional amendment, it seems that the chance of any meaningful Constitutional amendment being added, even if bipartisan, is extremely low. This is backed up by the fact that Franklin D. Roosevelt, one of the most popular and impactful US Presidents (having served four terms!) was unable to pass reform. If he couldn’t do it, then the Pete’s chances look even slimmer.
The Real Importance of Pete’s Plan
Court reform is a difficult topic and there will never be a clear answer that satisfies everyone. The importance of Pete’s plan is not in the hope of its implementation; rather, it is in bringing the idea and need for Reform onto the stage in a brighter light. Hopefully, one day a Court that is fair and balanced will be created. A Court closer to what America needs.
