What Would An Ideologically Even-Split Supreme Court Look Like?
Establishing Supreme Court term limits is one of the most popular proposals for the Supreme Court. Court-packing is another plan that has grown to become a part of national dialogue. A lesser-known pathway, proposed by Daniel Epps and Ganesh Sitaraman, calls for an ideologically even-split Supreme Court.
In this model, the bench would be expanded to 10 justices. Five justices would be associated with the Democratic Party and five with the Republican Party. These 10 justices would then select five additional justices from sitting circuit judges. However, these five judges would have to be chosen unanimously; the 10 justices would have to come to a consensus about which additional judges they wish to add to the bench. If the justices fail to come to a unanimous decision, they would not be allowed to hear cases for that year.
The idea behind this proposal is that the five additional justices would restore some independence to the court. If the justices have to unanimously agree on five judges, they may be more likely to agree on independent judges with no clear partisan affiliation. However, there is always the possibility that the justices agree on a few partisan judges to bring to the bench. Additionally, the even partisan split would reduce tension surrounding Supreme Court appointments, because each party would be guaranteed five justices.
This model may also encourage presidents to appoint independent judges to lower courts. If the 10 justices tended to select independent judges, presidents may opt for less ideological appointments to lower courts because less ideological judges may be more likely to be chosen as temporary Supreme Court justices.
The additional justices would serve one-year terms and would need to be selected two years in advance. Epps and Sitaraman provide for a two-year gap to reduce the possibility of justices “brokering deals” with one another during the judge-selection process. A two-year gap would help prevent deals based upon the cases that the justices knew were scheduled for hearings.
Judges from lower courts added to the bench for short periods of time may help ensure some modernity on the Supreme Court. Late Justice Antonin Scalia once said, “You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.” If five new justices were to be added to the bench every year, new perspectives would be available to offer competing arguments.
With mandatory party affiliation quotas, the Supreme Court appointment process would likely require amending. What would happen if a Democratic president was in power if a Republican justice passed away? The highest ranking Republican congressman or congresswoman could be in charge of the nomination. Or, the highest ranking Republican in Congress could be required to send the name of the Party’s nominee to the president and the president would be required to make the formal nomination.
This proposal attempts to reduce highly contentious Supreme Court nominees and restore independence by requiring the party-affiliated justices to come together and decide on five (hopefully) independent justices. In order to be perceived as a legitimate institution, the Supreme Court cannot continue to be so politicized. Some degree of independence must be restored so that Americans are confident the Supreme Court is a body that decides questions of law, rather than a tool that pushes a party’s agenda.