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Judiciary Reform Is Not Revenge

The Atlantic logo The Atlantic 9/28/2020 Lawrence Goldstone
a close up of a necklace © Getty / The Atlantic

Following Justice Ruth Bader Ginsburg’s death, Democrats, not surprisingly, are outraged at Republicans’ course reversal on filling a vacancy during an election year. Two proposals are gaining momentum among commentators and progressive activists: expanding the number of justices and instituting term limits. These ideas almost always seem to smack of political revenge.

But to think only in terms of getting even is to miss the point. Each of these notions is in line with what the Founders of this nation expected when they drafted the Constitution, and what many of them designed as members of the First Congress.

When the delegates to the Constitutional Convention were trying to devise a formula for a new government that would be effective, they also needed it to be embraced by a leery citizenry, which feared despotism, particularly with respect to a national judiciary. These sentiments were prophetically voiced by “Brutus”—whose identity remains unknown—writing against ratification in New York. Courts of law, he warned, “will give the sense of every article of the constitution that may from time to time come before them. And in their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law, because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal.”

And so many delegates opposed giving a federal judiciary any real power. In addition, each state already had a functioning legal apparatus whose independence would be diminished as the authority of a federal judiciary increased. Finally, in a nation where allegiance to one’s state was preeminent, many Americans were loath to cede control to citizens of other states, whom they viewed as foreigners.

[Ilya Shapiro: Term limits won’t fix the Court]

At only six paragraphs long, the brevity of Article III—the section of the Constitution that established the judicial branch—is a reflection of an unwillingness to commit to wording that might be rejected by the states during ratification. Article III is, in the end, more notable for what was left out than what was included.

A Supreme Court was specified, but not the number of justices who would comprise it. That, as well as the makeup of the remainder of the federal judiciary, if indeed there was to be one, was left to Congress.

And Congress complied. In one of the first pieces of legislation it produced, the Judiciary Act of 1789, Congress mandated that the Supreme Court have six justices, each of whom would also preside over one of six specific geographic areas, delineated by population and perceived importance to the new government. Justices would be required to “ride circuit” twice a year, which for some meant long journeys through the wilderness to Georgia or New Hampshire, traveling over bad roads, and eating coarse food at backwater country inns. It was a task most despised. The law also provided details of both a nationwide district court system and defined jurisdictions that had been omitted in Article III.

High-mindedness did not last, and partisan competition soon came to dictate the shape of the Court. In 1801, outgoing President John Adams and a lame-duck Congress reduced the number of Supreme Court justices to five to prevent Thomas Jefferson from filling the next vacancy. Jefferson and his Republicans promptly restored the number to six in 1802. In 1807, after the Louisiana Purchase, Jefferson’s Republicans added a seventh justice to conform to a seventh federal court circuit.

In 1837, the number of circuits was increased to nine, as was the number of justices. For a brief period beginning in 1863, there were 10 circuits and 10 justices. To throttle President Andrew Johnson, Congress reduced the number of justices to seven in 1866, but then, when Johnson was gone, set the number at nine, where it has remained ever since.

Although the number of justices has not increased as the population of the nation has grown, the number of circuits has increased to handle the greater caseload. And although justices no longer ride circuit, each circuit of the current 13 continues to be assigned to a justice on the high bench. So the principle that the Supreme Court should expand as the country does has been abandoned.

Article III similarly failed to specify how long a Supreme Court justice would serve, stating only that judges “shall hold their offices during good Behaviour.” This has widely been interpreted as serving for life, but with fear of judicial despotism so widespread, “during good Behaviour” could well have meant that justices could serve as long as they discharged their duties professionally and stayed out of politics. (Samuel Chase, the sole Supreme Court justice ever impeached, was brought to trial in part in 1804 for exhibiting open partisanship from the bench.) That is not at all the same as defining how long they are allowed to remain on the bench.

“Good Behaviour” presents a particular problem for textualists, who, as the former Justice Antonin Scalia said at Catholic University in 1996, “don’t care about the intent … don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words.” They “take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” If the Framers intended justices to have life terms, it would have been a simple matter to draft the sentence to make that intention clear. As it stands, one can only assume that good behavior and life are synonymous, and assumption is anathema to textualist philosophy.

[Mary Ziegler: A dangerous moment for the Court]

Therefore, even if one takes the textualist view of Article III, creating terms of service for justices, with the right of reappointment, would not require a constitutional amendment, but merely an act of Congress, as would expanding the number of justices to match the number of circuits. It would also be an easy matter to link the number of allowable circuits to population so that a dominant political party could not simply add new circuits at will.

Reforming the Supreme Court in this way would not only conform to the intentions of the Framers, but also serve to restore trust in an institution that has lost it with large segments of the American public.

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