Addressing the Supreme Court’s Political Challenges

Americans are less concerned about the exact number of justices on the Supreme Court. Their primary concern is the court’s fairness. Currently, trust in the institution is declining. This distrust isn’t due to a specific decision but a growing fear that the court is becoming a prize to seize rather than a trustworthy referee.

Many Democrats have proposed expanding the court from nine to 13 or even 15 seats. This move stems from frustration over what they see as an illegitimate conservative supermajority. Meanwhile, Republicans perceive these initiatives, along with Democratic threats to eliminate the filibuster for passing such bills, as reasons to act first.

It is important to note that the filibuster has already been weakened by both political parties for judicial appointments. What remains of it might not endure this political cycle. Each party’s threats seem to justify the other’s actions, creating a situation where escalation appears inevitable. This path could lead to a court with a potentially much larger number of justices, compromising its independence.

Republicans need not create their own court-packing legislation because Democrats have already done so. The Judiciary Act, introduced by progressive Democrats in recent years, allows the sitting president to add new justices immediately. With a Republican president and Senate, if passed now, this act would create a conservative supermajority, contrary to its original intention.

No Democrat would support their legislation under current circumstances. The contradiction offers leverage, suggesting a clear potential for a deal. Republicans could propose two bills, indicating that one will proceed. The first would be a straightforward expansion bill similar to that proposed by Democrats. The second would be a constitutional amendment to fix the court at 11 justices, with two new seats assigned to the next two presidents, regardless of their party.

This strategy emphasizes institutional stability rather than solidifying the current conservative majority. The offer to Democrats: assist in passing the amendment or see the expansion bill pass favoring the Republicans. The proposed amendment does not particularly favor any party in the long term and would remove the court’s size from political contention.

Although a constitutional amendment can be challenging to pass, this difficulty is what makes it a persistent solution, unlike statutes that a future Congress could overturn after any shift in majority. Given the current political landscape, where both parties claim to defend the court’s legitimacy, this might be the best opportunity in decades to accomplish stability.

Surveys show that Americans desire structural stability for the court, despite differing opinions on its decisions. With extensive experience advising institutions, I’ve observed a pattern: once rules are seen as negotiable, discussions commence. The restraint that once prevented action becomes a casualty. This is where the Supreme Court may be heading.

The Supreme Court has had a stable bench for 150 years, enduring landmark decisions that angered sections of the populace. Some of these decisions were later reversed or softened by subsequent courts or circumstances. The court’s potential decline into a political tool threatens its vital role in our republic.

The importance of an independent Supreme Court cannot be overstated. It is essential to the continuity of our system, irrespective of its current makeup or which party benefits from its decisions. Though many leaders in Washington express valuing the court as crucial to maintaining checks and balances, the political courage to act may be lacking.

With a suitable deal at hand, political leaders might rely on their survival instincts to navigate through the current challenges. A corporate governance expert, Marc Hodak advises global corporations and has taught at NYU Stern and SMU.