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What should Democrats do about the Supreme Court?

“Democrats need to squarely face the question: Are you willing to give up democracy in order to keep the current structure of the Court?”

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Piles of flowers, condolence cards, and candles on the pavement outside the Supreme Court building.
Tributes to the late US Supreme Court Justice Ruth Bader Ginsburg are seen at the Supreme Court in Washington, DC, on September 21, 2020.
Nicholas Kamm/AFP via Getty Images

If Democrats win back power this November, they will be faced with a choice: Leave the existing Supreme Court intact and watch their legislative agenda — and perhaps democracy itself — be gradually gutted by 5-4 and 6-3 judicial rulings, or use their power to reform the nation’s highest court over fierce opposition by the Republican Party.

Ganesh Sitaraman is a former senior adviser to Elizabeth Warren and a law professor at Vanderbilt. He’s also the author of one of the most hotly debated proposals for Supreme Court reform, as well as the fairest and clearest analyst I’ve read regarding the benefits and drawbacks of every other plausible proposal for Supreme Court reform. So in this conversation on The Ezra Klein Show, we discuss the range of options, from well-known ideas like court-packing and term limits to more obscure proposals like the 5-5-5 balanced bench and a judicial lottery system.

But there’s another reason I wanted Sitaraman on the show right now. Supreme Court reform matters — for good or for ill — because democracy matters. In his recent book, The Great Democracy, Sitaraman makes an argument that’s come to sit at the core of my thinking, too: The fundamental fight in American politics right now is about whether we will become a true democracy. And not just a democracy in the thin, political definition we normally use — holding elections and ensuring access to the franchise. The fight is for a thicker form of a democracy, one that takes economic power seriously, that makes the construction of a certain kind of civic and political culture central to its aims.

So this is a conversation about what that kind of democracy would look like, and what it would take to get there — up to and including Supreme Court reform.

A lightly edited excerpt from our conversation follows. The full conversation can be heard on The Ezra Klein Show.

Subscribe to The Ezra Klein Show wherever you listen to podcasts, including Apple Podcasts, Google Podcasts, Spotify, and Stitcher.

Ezra Klein

What effect do you think the Supreme Court has had on American democracy in the past couple of decades?

Ganesh Sitaraman

I think that we have a Court that is in crisis in important ways right now.

What we face is a polarized Court in which the ideology of the justices lines up with the president who appointed them. That doesn’t sound like a big deal, but that has not been true in modern American history. There were Republican appointees who were on the liberal side of the ideology line, like Justice Stevens and Justice Souter. Under FDR, there were Democratic appointees who were part of the coalition of justices striking down the New Deal; it was a Republican-appointed justice who wrote the decision in Brown v. Board of Education, a Republican-appointed justice who wrote Roe v. Wade. So we’ve had a very different kind of system historically, and we now have a very polarized system that is predictable.

That’s now coupled with a confirmation and appointment process that has really become a death match, including Mitch McConnell immediately declaring that they were not going to hear and give a full hearing to Merrick Garland in 2016, and then flipping on that in this current moment. So we have a process that’s become problematic.

And then there’s a question of the legitimacy of court decisions. We have a fractured country and a fractured court. And one of the worries is that if you get party-line decisions on salient issues over and over and over again, it ultimately is going to be very, very hard for the losing side to accept defeat consistently.

Part of that problem is that we have these ideologically polarized schools of thought. Part of the problem is that the Supreme Court has taken on a very large role in our policy in political debates — which is also actually a striking 20th-century development of the Supreme Court. These things together create a massive problem.

If you see cases increasingly coming down where an ideologically aligned conservative majority is going to be allowing more money in politics, potentially striking down attempts to expand voting rights in the future, already having struck down one version of the voting rights reauthorization a number of years ago — let alone addressing things like workers rights, reproductive rights, LGBT rights, etc. — it will become increasingly harder, I think, for people who are left of center to accept the Supreme Court as a legitimate institution. I think that’s a problem not just for our Supreme Court but also for the rule of law and for our constitutional system as a whole.

Ezra Klein

It strikes me that what we are experiencing today is something like a “doom loop of democracy.” We have a political coalition that is not able to win elections through popular vote majorities, but — due to its geographic structure and the way the American system is built — is able to win power nevertheless. Then it stocks the Supreme Court using that power, and that Court makes decisions that make it easier for the GOP to win power without winning majorities by greenlighting gerrymandering, allowing unlimited amounts of money into politics, gutting public-sector unions, permitting a wide range of voter suppression. Those decisions then allows Republicans to keep winning power, which allows them to keep packing the Supreme Court. And so the cycle keeps on going.

Ganesh Sitaraman

I think you’ve described what’s going on well. People in the world of politics say these things: President Trump will say that Republicans can’t win if everyone’s going to vote. That’s the quiet part being said out loud. And I think it runs in the kind of cycle that you described.

Part of the challenge for a lot of people is seeing that to achieve — or save — democracy, you actually have to fundamentally change major institutions, which are being manipulated in order to prevent the persistence of democracy and entrench a minority. It’s funny that the people you’re talking about are very worried about the “tyranny of the majority”; we don’t really talk as much about the tyranny of the minority, but that’s the thing we should be more worried about in our system right now.

Ezra Klein

You’ve come up with some influential proposals for rethinking the court, and have been writing about other ones on Twitter in recent weeks. I want to discuss these, but first I want to start with something that I think you very usefully foreground in your writings on this: the need to be clear about what the goal of any Supreme Court reform effort is. Can you talk a little bit about the different goals you think people have and what your goal in some of your proposals actually is?

Ganesh Sitaraman

I think this is a really important question. There’s a lot of conversation about different types of actions to take on the Court. There’s far less on: What are you trying to actually accomplish?

Some people have proposed ideas like jurisdiction stripping, which is a fancy way of saying not allowing the court to hear cases on certain topics. The goal there is that the court should not have as much power in our constitutional system and that the political branches should have much more power. So they’re really trying to disempower the Supreme Court. That’s one goal we might have.

There are people who support 18-year term limits for justices — like you’ve written about. It is sort of astonishing that the entirety of a Supreme Court majority — and maybe decades of constitutional lawmaking at the court level — can turn on essentially a random occurrence of when a justice happens to pass away or a strategic decision by a justice to retire or not to retire at a given moment. You would never think to design a system like that from scratch.

You have people who want to lower the stakes and the temperature of appointments and the confirmation process. Some want to make the court itself less partisan. And others see the goal of court reform as reprisal for the Garland situation a couple of years ago, or want to have a court that agrees with their policy preferences and will uphold decisions in their favor.

So there’s this whole range of goals. In the paper that I’ve written with my co-author Dan Epps called “How to Save the Supreme Court,” we’ve identified three goals: make the court less of a partisan institution, lower the stakes and the temperature of a really corrosive appointment and confirmation process, and put a little bit of a thumb on the scale in terms of deference to the political branches.

Ezra Klein

There are a couple things that I think of when I think of my goals for the Supreme Court. I think the Supreme Court should be less high-stakes. I take the court’s politicization as simply a downstream consequence of polarization in American politics, and the court is a powerful political institution so it’s going to be polarized as well. But I do think the question of deescalation is important.

And something that is in at least one of the ideas you’ve put forward is to have five Democratic seats, five Republican seats, and then five seats that are justices nominated by the unanimous decisions of the partisan judges. What I like about that approach is that I think balancing the parties’ respective power on the court may actually make sense.

If you’re going to have this unbelievably powerful and quite undemocratic institution, then maybe what you want to do is accept that the parties are the essential units of American politics and balance them. And then have an avenue for justices who are not really favorites of either party to be there too because under the current system if you are not a hardcore Democratic or Republican judge, you have no chance of ever being on the court, which seems a little bit weird given that a lot of people are not hardcore partisan ideologues in this country.

Can you talk about that approach and how pursuing it differs from trying to push the court in the direction of whatever your party is?

Ganesh Sitaraman

What’s paradoxical about this partisan balance requirement idea is that it tries to use partisanship in order to disarm partisanship. We do this in other areas. We have independent agencies like the Securities and Exchange Commission and they have partisan balance requirements.

And, in 2016, we actually had a real-life experiment with what it would it mean to have an even number of justices with a partisan balance. It turns out that year the court reached more consensus than they had in 70 years. That court also was really working to narrow its decisions in order to avoid making grand pronouncements of constitutional law. Those actually seemed like virtues to me — that we have a court that’s a little more humble and is working really hard to find agreement rather than splitting off in its own direction, whether it’s a conservative one or a liberal one. Part of what I think is appealing about this 5-5-5 proposal is that it tries to pull on those ideas.

You’ll have the 10 partisan judges select an additional five judges drawn from the lower courts to serve just over a year at a time and it would create some really interesting incentives. You might get judges on the Supreme Court justices who want to log roll a little bit so they’ll each get two justices who are more radical, but they still have to agree on one. And that one might be conservative on some issues and liberal on others. It might change how lower court justices behave so they can get a chance to be on the Supreme Court, in which case they’re going to have to moderate themselves and be more moderate in general.

So I think you’d get some interesting dynamics that would be a little bit different. But one of the great benefits of this approach is it really lowers the stakes of confirmation hearings because, yes, you do have to replace the five on each side, but you know where they’re coming from. And for everyone else, they were just drawn from the lower courts. That should really tone down the amount of salience and the kind of fights that we’re seeing right now over confirmations.

Ezra Klein

Let’s say Republicans nominate Amy Coney Barrett and then Democrats win in November. They come in, they have the Senate, and we enter into something like what we saw with FDR and the New Deal — where the Republican Court is now just knocking down Democratic bill after Democratic bill. And they are creating the conditions in some of these rulings for Republicans to win under minority conditions more easily in the future.

Packing the court has a bad name in politics because it didn’t succeed when FDR did it, but it did in some way succeed in changing what the Court was doing in response to his legislation, which is arguably just as important. And it did help kind of create a new political equilibrium. So is your advice to Democrats to be less afraid of taking this on?

Ganesh Sitaraman

I think Democrats need to be thinking about court reform and pushing it forward. I think it has benefits in two different directions. One is the one you hinted at: To the extent there’s a lot of discussion of court reforms, you might see the current Court being a little bit narrower, a little bit more humble, maybe thinking about its own legitimacy. We have at least reported senses that Chief Justice Roberts, for example, is very concerned about the court’s legitimacy. So I think you might have a benefit even if a proposal does not get passed in terms of how the Supreme Court behaves.

But, more broadly, I do think we need to address what has become just a horrific process over judicial appointments and the role of the court. I think it’s going to be very, very hard to see the court as legitimate if it acts in a much more ideologically aligned way with a certain party on hot-button issues. I think that’s going to be a really big challenge for Democrats.

And, to go back to talking about democracy, if doing nothing on the Court means that you get a system in which we basically lose a lot of the ability to expand voting rights and a wide variety of other things, then Democrats are going to need to squarely face the question: Are you willing to give up democracy in order to keep the current structure of the Court, which is not required by the Constitution?