16 The New York Reviewof power. Rather, he told the commis-
sioners, the goal should be to “disem-
power” the Court through such means
as limiting its jurisdiction or requiring
that only a supermajority of justices
could invalidate an act of Congress.
Jamal Greene, a professor at Co-
lumbia Law School, had something yet
more drastic in mind to counter what
he considers the Court’s most serious
structural failing, “the disproportion-
ate amount of power each individual
justice wields.” He proposed expanding
the Supreme Court to include every ap-
pellate judgeship on the federal bench,
currently 179 positions. This would
be the “formal” Supreme Court. The
“functional” Supreme Court that would
actually decide cases would consist of
sixteen members drawn from the entire
group to serve sixteen- year terms.
In Greene’s view, because all 179
“justices” would retain their life ten-
ure and most would simply keep doing
their current jobs of appellate judging,
this structure could be put in place by
statute without the need for a consti-
tutional amendment. “Such a Court
would help to diffuse the judicial
power,” he said, “resting less control
over the course of US law in the hands
of a tiny number of unaccountable and
life- tenured individuals.” Greene listed
notable cases, both celebrated and infa-
mous, decided by a single vote during
the past dozen years: Citizens United in
2010, saving Obamacare in 2012, taking
a hatchet to the Voting Rights Act in
2013, recognizing same- sex marriage in- “The amount of power individual
justices wield over American life should
concern policymakers, lawyers, and cit-
izens of all political and ideological per-
spectives,” he told the commission.
Not too many years ago, the idea
of imposing term limits on Supreme
Court justices sounded radical; the
received wisdom was that life tenure
was an essential safeguard of judi-
cial independence. A 2006 article by
two conservative law professors at
Northwestern University, Steven G.
Calabresi and James Lindgren, put in
play the idea of eighteen- year staggered
terms, a system that would provide two
vacancies in every four- year presidential
term. They noted with dismay that there
had been no turnover between Breyer’s
appointment in 1994 and the arrival
of Chief Justice John Roberts in 2005;
average length of service on the Court
had jumped from 14.9 years during the
period from 1789 to 1970 to 26.1 years
for justices who had retired since 1970.^1
The article generated considerable
conversation within the legal academy,
but never really penetrated beyond its
walls. While the stability of the Court
was at that point a source of frustration
for conservatives— President George
W. Bush had no vacancies to fill during
his first term and only two during his
second— stability seemed to strike the
general public as just fine. That changed,
at least for Democrats, with Donald
Trump’s nomination of Neil Gorsuch
to the seat the Republicans had blocked
President Barack Obama from filling for
nearly a year. Why, the question went,
should a president who lost the popularvote be able to install, in a seat that was
not legitimately his to fill, a forty- nine-
year- old man who could be expected to
serve for thirty or even forty years?
Gradually, the notion of abolishing
life tenure— an anomaly among the
constitutional courts of the world—
began to sound less like an academic
thought experiment and more like
something that could actually happen.
It now seems the least radical proposal
under consideration. Despite a lack of
consensus on how to bring term limits
about, the question of whether there
should be term limits has morphed im-
perc eptibly f rom “W hy? ” to “W hy not? ”
The commission report’s chapter on
term limits is a meaty one that, while
not claiming a consensus, conspicu-
ously omits the notation in the Court-
expansion chapter that “there is profound
disagreement among Commissioners.”
Instead, the chapter stresses the “consid-
erable, bipartisan support” that propos-
als to impose term limits have attracted.
With staggered eighteen- year terms, it
notes, predictability would replace the
randomness of vacancies occurring by
death or strategically timed retirements:This predictability, proponents
argue, would strike a more appro-
priate balance than the current
system between two important fea-
tures of our constitutional system
of checks and balances: judicial
independence on the one hand and
long- term responsiveness of the ju-
diciary to our democratic system
of representation on the other.The report also acknowledges argu-
ments for maintaining life tenure— for
example, that to the Court’s detriment,
a guarantee of two vacancies in each
presidential term would “further po-
liticize appointments and heighten
the belief that Justices are allies of the
President and the President’s party.”
Still, it’s hard to read this chapter as
doing something other than bestow-
ing a tacit establishment imprimatur
on the idea of abolishing life tenure. It
marks an impressively swift migration
from “off the wall” to “on the wall,” to
borrow an image that Jack Balkin of
Yale Law School, a commission mem-
ber and longtime advocate of term lim-
its, often uses in describing the process
of constitutional change.
There are many thorny implementa-
tion questions: By statute or constitu-
tional amendment? What to do about
vacancies that arise off schedule?
What constraints might be put on jus-
tices whose terms have expired? And
what kind of transition period should
there be? Assuming that incumbent
justices would retain their life tenure,
with the new system relegated to future
appointments, an awkward transition
could last for decades.For those seeking a quicker fix for the
present ideological imbalance on the
Court, expansion— or packing, to use
the pejorative that is forever attached
to Franklin D. Roosevelt’s failed pro-
posal of 1937— has obvious appeal. Two
members of the commission, Laurence
Tribe and Nancy Gertner, a retired fed-
eral district judge, began by favoring
term limits but came to support expan-
sion as the only effective counter to the
Republicans’ manipulation of the con-
firmation process, as they explained in
a Washington Post op- ed shortly afterthe report was issued. “A Supreme
Court that has been effectively packed
by one party will remain packed into
the indefinite future, with serious con-
sequences to our democracy,” the two
wrote. “This is a uniquely perilous
moment that demands a unique re-
sponse.”^2 (Tribe’s disillusionment with
the Court is acute, as he recently made
clear in these pages.^3 )
Marking a dramatic departure from
the commission’s overall stance of scru-
pulous collegiality, the op- ed under-
scored how deep the feelings have run
on the expansion issue. That is in part
because of the theoretical ease with
which it could be accomplished; unlike
term limits, which many think would
require a constitutional amendment,
there is no doubt that Congress has the
power to set the size of the Supreme
Court through ordinary legislation.
Before the November 2020 election,
when the Democrats’ wishful thinking
suggested that they might achieve a
filibuster- proof majority in the Senate,
those on the party’s left fixed on expan-
sion as a real possibility and have had a
hard time letting go of the idea in the
face of today’s electoral reality.
Still, as the report’s carefully worded
chapter on the subject explains, there
are reasons to keep talking about ex-
panding the Court even if there is little
prospect now of actually doing it. “For
some proponents of expansion, even
the calls for such reform could help pre-
vent further democratic backsliding,”
the report notes, adding thatan attempted expansion— or even
just the prospect of expansion—
could lead the Supreme Court to
be restrained in its jurisprudence
and more respectful of the role of
the political branches, at least in the
short term.An interesting chart shows that with
nine judges, the US Supreme Court is
one of the world’s smallest constitu-
tional courts. Belgium, Ireland, Spain,
and the United Kingdom all have
twelve judges, and Germany’s highly
respected court has sixteen.
The chapter on expansion also looks
at proposals for restructuring the
Court, either by having the justices sit
in panels, as is standard procedure on
the federal appeals courts, or having
them rotate on and off the Court along
the lines of Jamal Greene’s proposal.
The treatment of this indisputably star-
tling idea is respectful:We cannot conclude that the Consti-
tution precludes rotation and panel
reforms, at least as long as pro-
cesses exist to ensure that a juridical
body operates in some meaningful
sense as a single “Court.”(Article III of the Constitution pro-
vides that “the judicial Power of the
United States, shall be vested in one
supreme Court.”)
The report is more skeptical whether
Congress has the constitutional author-
ity to enhance its own power by requir-
ing that only a supermajority of justices
could invalidate a federal statute. But
no matter whether Congress could im-
pose such a requirement, the discussionof whether it should comprises one of
the more novel and interesting sec-
tions of the report. On the one hand, “a
central concern is that such measures
would undercut judicial capacity to pro-
tect constitutional rights against major-
itarian overreach.” On the other hand,supporters of disempowering pro-
posals counter that supermajority
voting requirements actually may
bolster constitutional rights....
They see an important role for the
political branches in promoting con-
stitutional freedom that courts re-
cently, in their view, have undercut.(Of course, conservatives already have
a supermajority of six justices, so 5–
decisions may be yesterday’s problem.)
And then, almost as an aside, the re-
port offers this observation:Any ultimate assessment of the sys-
temic consequences of supermajor-
ity voting requirements will depend
on one’s perspective on the role the
Supreme Court and the federal
judiciary ought to play within our
system of government and on how
well the democratic lawmaking
process and its various institutions
currently operate. Evaluating these
proposals will hinge in large part
on one’s view of the relative abil-
ities of courts and legislatures to
protect constitutional rights.And isn’t that really the point? This
passage reminds us that the Supreme
Court is not an object under glass to be
examined by experts in an empty room.
How we think about the Court— what
we think we need from the Court— is
deeply dependent on how we view the
functioning of the rest of the Ameri-
can system. That system includes not
only Congress, the presidency, and
the states, but also the institutions
of civil society— the universities, the
workplaces, the countless platforms on
which claims of rights clash. To wrestle
with the Court, even to criticize it pas-
sionately in the course of seeking its re-
form, is its own kind of fidelity to the
notion that law— the Constitution in
the hands of its judicial interpreters—
provides the American experiment’s es-
sential underpinning. Alienation from
the Court means that help needs to
come from elsewhere, if it comes at all.
No doubt, the presidential commis-
sion’s accomplishment is modest. It
gives no answers. It simply lays out all
the proposals for change, treats them se-
riously, and takes account of the best ar-
guments for and against each one. Does
that amount to “paralysis- by- analysis,”
as Brian Fallon of the reform group De-
mand Justice charged?^4 Maybe.
But maybe not. “If the commission
was intended to be the place where
Court reform went to die, its effect in
the long term may be the opposite,”
Samuel Moyn and Ryan Doerfler wrote
in The Atlantic days after the report
was released, because “ideas that were
once fringe have now moved to the
center of Court discourse.” It was just
possible, they said, that “the attempt
to contain Court reform might have
helped unleash it.” Q
— March 10, 2022(^1) Steven G. Calabresi and James Lind-
gren, “Term Limits for the Supreme
Court: Life Tenure Reconsidered,”
Harvard Journal of Law and Public
Policy, Vol. 29, No. 3 (Summer 2006).
(^2) “The Supreme Court Isn’t Well. The
Only Hope for a Cure Is More Jus-
tices,” December 9, 2021.
(^3) “Politicians in Robes,” March 10, 2022.
(^4) Josh Gerstein, “Biden SCOTUS Re-
form Panel Also Mulls ‘Dysfunctional’
Confirmation Process,” Politico, Octo-
ber 14, 2021.
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