Americans are less focused on the number of Supreme Court justices and more concerned about the fairness of the court. Trust in the court is declining, not due to a specific ruling, but a fear that the institution is becoming a partisan battleground rather than an impartial arbitrator. This concern arises as Democrats propose expanding the court, frustrated by what they view as an illegitimate conservative majority. Republicans are responding to these proposals and threats to eliminate the filibuster with potential countermeasures.
The filibuster has already been weakened by both parties for judicial appointments, and its remnants may not last much longer. Each party’s threats seem to justify the other’s actions, leading to a logical escalation that could result in a bloated court, undermined by political influence.
Progressive Democrats introduced the Judiciary Act several times, aiming to increase the court’s seats and allow the current president to immediately appoint new justices. If a Republican president and Senate were currently in place, passing this bill would solidify a conservative supermajority, contrary to Democrats’ intentions. Democrats would not support their legislation under these conditions due to its contradictory results. However, this situation presents leverage for a potential compromise.
One proposed deal involves two bills: the first, a clean version of Democrats’ expansion legislation brought for a vote; and the second, a constitutional amendment fixing the court at 11 justices, with two new seats appointed by the next two presidents from either party. This plan aims to ensure institutional stability rather than a conservative majority. The bargain offered to Democrats is clear: assist in passing the amendment or witness their bill passed in favor of Republicans. This genuine offer serves to protect the Supreme Court’s stability.
The arduous nature of passing a constitutional amendment is precisely what ensures its longevity compared to a statute that a future Congress could easily repeal. The current political climate, where both parties emphasize the court’s legitimacy, presents an opportunity for this durable solution. Public opinion consistently favors structural stability for the court, despite disagreements over specific rulings.
In institutional governance, once the rules become negotiable, negotiations commence, and the restraint previously observed is lost. This destructive cycle is where the Supreme Court seems headed. Despite surviving landmark decisions that divided opinions over 150 years, the court may not endure if it becomes a partisan tool for temporary advantage. Maintaining a stable, independent Supreme Court is vital to ensuring continuity in the system of checks and balances.
Many Washington leaders value the court as an essential part of this system, though their political courage may be questionable. With a reasonable compromise, they can rely on their survival instincts, crucial for navigating current challenges.
Marc Hodak is a corporate governance expert, advising global corporations and teaching corporate governance.