The Supreme Court with a conservative supermajority began its new term Monday, hearing arguments in person again (sans COVID-positive Brett Kavanaugh) for the first time since the pandemic began, and it will consider cases defining constitutional rights for the 21st century. We’ll have plenty to say in the coming weeks about gun safety in New York, abortion in Mississippi and more. The topic today is not the court’s rulings, but its shape and process.
Back on April 9 — under pressure from progressives rightly incensed by Republicans’ 2016 election-year refusal to give Merrick Garland a hearing, followed four years later by their galling election-year rush to install Amy Coney Barrett — President Joe Biden created a commission to study changes to the court, including adding seats to the bench. The panel’s report is due back next month.
Though the Constitution is silent on the size of the Supreme Court, which fluctuated in the Republic’s early years, it’s been stuck at nine since 1869, notwithstanding Franklin Roosevelt’s ill-fated attempt to convince Congress to grow the number to 15.
The Biden panel should declare packing a non-starter. As satisfying as it might feel to left-wing partisans in the short term, it would give presidents a free hand to negate a judiciary check on their executive power. That’s bad enough under a president with healthy respect for American norms and downright disastrous under a President Donald Trump (past or future).
Term limits are a more attractive notion; they would disincentivize the appointment of relatively young jurists and end the ridiculous reality that the accident of when a justice expires can shift the balance for a generation.
While we await these grand debates, there’s a far more modest reform the high court should adopt immediately: livestream all arguments going forward. An innovation adopted as the Supreme Court gallery closed to the public during the pandemic has given all Americans a vital and confidence-inspiring window into the workings of the nation’s highest judiciary panel. Keep it going past a likely expiration in December.