Robert VerBruggen & Adam White: Should SCOTUS Be Reformed?

Summary

Future of Freedom Podcast: "Should SCOTUS Be Reformed?"

Released on October 28, 2024, by America's Talking Network

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Introduction

In this episode of Future of Freedom, hosted by Scott Bertram, the discussion centers on the contentious debate over potential reforms to the United States Supreme Court (SCOTUS). The episode features two esteemed guests: Robert VerBruggen, a fellow at the Manhattan Institute and writer for City Journal, and Adam White, the Lawrence H. Silberman Chair in Constitutional Governance and Senior Fellow at the American Enterprise Institute (AEI), as well as a former member of the President's Commission on the Supreme Court of the United States.

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Section 1: The Need for Supreme Court Reform

Robert VerBruggen’s Perspective: Robert VerBruggen initiates the conversation by outlining the current politico-judicial landscape. He identifies two primary motivations pushing the call for Supreme Court (SCOTUS) reform:

1. Political Retaliation: After decades of perceived left-leaning dominance, the recent appointment of originalist justices by Republicans has sparked fears among liberal factions of the Court shifting back to the right. This has led to proposals aimed at modifying the Court's structure to prevent conservatives from maintaining a majority indefinitely.

   "There's the nakedly political thinking behind some of the bills that would either just flat out expand the court or that would impose term limits and kick off some of the justices that have been serving the longest." (00:53)

2. Confirmation Process Dysfunction: VerBruggen emphasizes that the Supreme Court nomination and confirmation process has become excessively politicized, hindering bipartisan cooperation and making confirmations nearly impossible without Senate control.

   "The process of confirming people to the Supreme Court has just become really politicized and really, really dysfunctional." (02:45)

Adam White’s Perspective: Adam White counters by advocating for a more measured approach to reform. He expresses concerns over proposals like court packing, which he views as politically catastrophic and constitutionally dubious. White underscores the importance of preserving the integrity and functionality of the Court without succumbing to partisan pressures.

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Section 2: Proposed Reforms and Their Implications

Locking the Number of Justices: VerBruggen proposes maintaining the Supreme Court at nine justices permanently. He argues that fixing the number can prevent future political maneuvers aimed at tilting the Court's balance.

"I would lock the number at nine. And I would also keep all the current Justices who have been duly confirmed in serving on the Court in their roles for life tenure as they were originally promised and was originally the deal." (07:50)

Term Limits for Justices: Moving away from lifetime appointments, VerBruggen suggests implementing 18-year terms for justices. He believes this change would mitigate the issues of overextended tenures, age-related decline in fitness, and the strategic retirement of justices to influence their successors.

"Lifetime appointments create some kind of weird incentives. You have Justices who are, I mean a, some of them just stick around for as long as they can because they can stick around for life and have more influence that way." (08:37)

VerBruggen explains that fixed-term appointments would ensure regular turnover, allowing for systematic and predictable nominations by successive presidents.

Reverse Filibuster System: Addressing the politicized confirmation process, VerBruggen introduces the concept of a reverse filibuster. Under this system, a Supreme Court nominee would be presumed confirmed after 90 days unless the Senate achieves a supermajority (e.g., 3/5 or 2/3) to reject the nomination.

"So instead of saying first, back under the old filibuster system, you would need a super majority to confirm a Supreme Court justice. Now that we're done with the filibuster for Supreme Court nominees, you just need a majority. I'm saying you should actually need a super majority to reject one in order to make this system really work and make sure that the presidents actually get their pegs." (13:38)

Adam White’s Critique: Adam White vehemently opposes such reforms, labeling them as politically motivated and constitutionally questionable. He criticizes the idea of imposing term limits via statute rather than constitutional amendment, arguing that it undermines the established principle of lifetime tenure.

"What we have now is, I think, an even more, even more stark assertion of raw power that in the face of the Constitution's explicit protection of life tenure, this legislation would just eject Justices one at a time from the courts." (23:02)

White further warns that establishing precedents for manipulating Court composition could lead to continuous partisan battles, eroding the Court's independence.

"Once we've created a national precedent that Congress and a President can just legislate who sits on the court's front bench and who sits on the back bench, we will do it not for the last time but for the first time and that the next time the partisan stars realign." (29:21)

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Section 3: The Role of the Senate and Political Polarization

VerBruggen on Senate Reforms: When questioned about why reforms aren't targeted at the Senate—the body responsible for confirmations—VerBruggen expresses skepticism about the feasibility of improving the Senate's functionality. He suggests that the politicization is too ingrained, making external reforms challenging.

"I don't know how you reform the Senate to stop that. I think you need to reform the process by which you put people on the Supreme Court." (04:25)

White on the Senate’s Influence: Adam White highlights that proposals connecting nominees directly to presidential terms diminish the Senate's crucial role in maintaining checks and balances. He warns that such changes could precipitate constitutional crises, especially when political parties control different branches.

"Supreme Court seats are not just the automatic spoils of a presidential election." (25:00)

White underscores that reducing the Senate's involvement could lead to overreach and destabilize the foundational balance of power among the branches of government.

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Section 4: Historical and Constitutional Considerations

Lifetime Tenure vs. Modern Realities: Adam White acknowledges that the framers of the Constitution could not have anticipated the extended lifespans today, making lifetime appointments less practical.

"Life tenure in 1789 meant something very different than life tenure today. I think it's sort of intuitive that appointing somebody at a pretty young age, in their late 40s, early 50s, to a post they might hold for 40, maybe 50 years someday raises real practical questions." (19:53)

However, he maintains that any significant changes, such as introducing term limits, require a constitutional amendment rather than legislative action.

Constitutional Amendment vs. Statutory Changes: White criticizes attempts to impose term limits through statutory measures, arguing they conflict with the Constitution's "good behavior" clause for justices.

"If this was going to be done, it would have to be done by a constitutional amendment. Now it's being proposed, but not with a constitutional amendment." (21:14)

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Section 5: Potential Consequences and Future Implications

VerBruggen’s Optimism vs. White’s Caution: While VerBruggen sees the need for SCOTUS reform as essential to maintaining a conservative majority and ensuring the Court's alignment with originalist principles, White fears that such reforms could lead to a perpetual cycle of partisan reshaping of the Court.

Long-Term Stability vs. Political Expediency: White warns that changes like term limits or reverse filibuster systems could introduce instability, making the Court vulnerable to shifts in political tides and undermining its role as an impartial arbiter.

"That's how varsity and junior varsity works. Maybe the junior Justices should sit on the bench for, oh, I don't know, maybe the next five years." (29:21)

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Conclusion

The episode concludes with each guest reiterating their positions. Robert VerBruggen advocates for locking the number of justices at nine and introducing term limits to prevent future politicization and ensure a balanced Court. Conversely, Adam White vehemently opposes such reforms, citing constitutional violations and the risk of exacerbating political polarization.

Scott Bertram wraps up by thanking both guests, highlighting the ongoing debate over Supreme Court reform and its implications for the interplay between the judiciary and political branches.

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Notable Quotes

1. Robert VerBruggen on the politicization of confirmations:

   "The process of confirming people to the Supreme Court has just become really politicized and really, really dysfunctional." (02:45)

2. Robert VerBruggen on term limits:

   "Lifetime appointments create some kind of weird incentives... I think the 18 year term... gives you a range where you can appoint somebody who's kind of in the prime of their life." (08:37)

3. Adam White on the dangers of statutory term limits:

   "This proposal would just eject Justices one at a time from the courts... it's a more raw assertion of power over individual Justices than even FDR had threatened." (23:02)

4. Adam White on the Senate's role:

   "Supreme Court seats are not just the automatic spoils of a presidential election." (25:00)

5. Robert VerBruggen on the reverse filibuster:

   "I'm saying you should actually need a super majority to reject one in order to make this system really work and make sure that the presidents actually get their pegs." (13:38)

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Final Thoughts

This episode of Future of Freedom offers a comprehensive exploration of the debates surrounding SCOTUS reform. Through the articulate arguments of VerBruggen and White, listeners gain insight into the complexities of judicial reform, the balance of power, and the profound implications such changes could have on American governance and the rule of law.

For more discussions like this, explore additional episodes of the Future of Freedom podcast and other offerings from America's Talking Network at americastalking.com.

Transcript

[Adam White]

Foreign.

[Scott Bertram]

Welcome to Future of Freedom. I'm your host, Scott Bertram. Future of Freedom is a production of America's Talking Network. You can check out all of our great [e-mail] to support great podcasts like this one, please donate by clicking the link in the show description. We bring you interviews today from different sides of the debate over the need for reform of the United States Supreme Court. In a little bit, we'll be joined by Adam White, Lawrence H. Silberman, Chair in Constitutional Governance and senior fellow at the American Enterprise Institute. AEI.org first we talk with Robert Verbruggen, fellow at the Manhattan Institute and writer for City Journal. Robert, thanks so much for joining us.

[Robert Verbruggen]

Good to be here.

[Scott Bertram]

Appreciate the time today as we talk about potential Supreme Court reform. And we'll be discussing in a few minutes some ideas that you laid out in a piece a couple of years ago [e-mail] as you were reviewing a book by Ilya Shapiro called Supreme Disorder. But you laid out some proposals, some ideas in there I want to discuss. Let's start here. Robert, why are we having this conversation? Meaning why do we feel or why do you feel, I guess specifically that there might be an need for change when it comes to the structure of the Supreme Court?

[Robert Verbruggen]

Sure. I mean, I think there are really kind of two strains of thought that are really prominent right now, and one of them is just sort of bad grapes. I think from the left, they had pretty much a tight grip on the Supreme Court for several decades. And then we went through a few decades where it was more of a swing voting court where you had Sandra Day O'Connor and Justice Kennedy later serving in a swing vote role. And now, for the first time in a long time, originalists appointed by Republicans have finally taken over the court, and they think that they're just not going to stand for that and they're going to change the rules now to get the conservatives off of the court. So that's the sort of nakedly political thinking behind some of the bills that we see that would either just flat out expand the court or that would impose term limits and kick off some of the justices that have been serving the longest. But to me, the more serious reason is that the process of confirming people to the Supreme Court has just become really politicized and really, really dysfunctional. And there's always been a political element of it. It's process. The president appoints justices, and he needs the advice and consent of the Senate. When you have those actors doing things, you're going to have some politics in it. That's always been the case, but that's become just extremely dysfunctional to the point now where it's basically very difficult to confirm anybody unless you control the Senate. You don't have the bipartisan efforts that we had before to kind of arrive at a decent candidate and vote them through. Essentially, if they're not on my side, I'm not going to vote for them. Kind of thinking you had filibusters until eventually we got rid of the filibuster for Supreme Court nominees where even a minority party would sometimes block a nominee to the Supreme Court or to a lower court. So it just gotten so politicized and so ridiculous that I think I'm worried that we're at a point where you may essentially need to control the Senate. People were complaining about holding up the nomination of Merrick Garland to hold the seat open for the next election. I kind of wonder if that's going to become even worse. And it's not just going to be in election years where people would consider doing that. I think it's really politicized and really dysfunctional. So I think we need some fresh thinking about how this should look going forward. While you're admitting that the reason we're having this discussion right now is the politicized reasons I talked about before where the left is just trying to kick off the justices that they don't like. And I think we as conservatives shouldn't stand for anything that would do that. I think that there's an originalist majority currently on the court and I think they should get to serve out their time. I think that should be non negotiable for anybody on the right.

[Scott Bertram]

As I hear you explain that, I guess I do want to ask why is the circumstance we find ourselves in right now one that requires reform on the Supreme Court side or on the judicial side and not one that would require some reform on the Senate side or the legislative side. If that's where the problems are coming and confirmation fights are happening and the advising consent question is coming, why isn't the Senate the body that sort of needs to be reformed or changed?

[Robert Verbruggen]

I mean, I'm not aware of anything that would make make the Senate better. Like are there ideas for making senators into better people? The Supreme Court, currently, the Constitution, I mean, currently gives them the right to consent to the nominees. So I mean, if you're, I don't know how you get past the politicization and the really deep, deep divides that are ideological in character now. You know Historically, and this was something that, you know, he's now a colleague of mine at the Manhattan Institute that Elio Shapiro talked about in his book. Historically, the politics were more like kind of smoky room type politics. You want somebody from different regions. There's certainly ideological elements to all of it, but it was more smoky room type politics where you were working out deals to get people on the Supreme Court. And there was a general consensus that if you met these requirements, you could get your nominee in. But now it's very strictly ideological. You have people on the right and people on the left, and the people on the left don't want to confirm the people on the right's nominees, and the people on the right don't wanna confirm the people on the left's nominees. I don't know how you reform the Senate to stop that. I think you need to reform the process by which you put people on the Supreme Court.

[Scott Bertram]

The president, Joe Biden has a plan and Kamala Harris has a Supreme Court reform plan. I don't wanna ask you to defend either of those, but I do wanna talk to you about this proposal or these ideas that you put forth in this piece at National Review a couple of years ago. One of the most important things, and perhaps the top thing we should talk about is Democratic, generally involves some form of court packing moving forward, meaning adjusting the number of justices and then allowing the current president to appoint justices to meet that number. Your very first point here is that the court has nine seats, period, going forward. And this reform that you discuss would lock that number in. Because right now the Constitution would say it can be whatever it is, Right? This is one of the things about the Supreme Court is that there are many things that are sort of left up to be able to change in the future.

[Robert Verbruggen]

Right? So some of the Democratic proposals, there are a few different bills that have been floating around for the past few years, but some of them are just kind of naked court packing where they increase the number of justices so that the Democratic president can appoint some new ones. That's the most clearly legal one, because, as you say, the current Constitution doesn't lock the number in, but it's also kind of the most nakedly political one. The other ones kind of combine elements of that with. With term limits. So basically what they would say is either, you know, the nine justices that are really on the court are the ones who are the nine most recently appointed ones that we're going to let the president appoint a new justice every two years. So basically, you could push out those older Justices and to avoid constitutional problems. Allegedly, they say this would avoid constitutional problems. They would keep the old justices around in kind of a senior role where they would handle certain cases or help out lower courts and things like that, which is, that's, that's really a stretch. The Constitution says that that Supreme Court's just served during good behavior. They're very effectively kicking them off the court. So that's the constitutional problem with doing that. But yeah, I mean, as I said before, I think politically speaking, this has been a really hard fought victory for conservatives to turn the Court around. Back in 1973, Roe v. Wade was a 7 to 2 decision and invalidated the laws of 46 states. There was just an immense gulf between the judiciary and the American people with the judiciary pulling well to the left. I don't think we have to tolerate that decades and then turn around and give up a majority now that people on the right originalists have fought to win that and finally have a majority. So I would lock the number at nine. And I would also keep all the current Justices who have been duly confirmed in serving on the Court in their roles for life tenure as they were originally promised and was originally the deal. And any changes we make to that process should be made going forward.

[Scott Bertram]

You propose that judges serve eight 18 year terms. Each president would pick two in each presidential term during the non election, the odd years moving forward. What about that length of 18 years? And why will term limits in this sense provide us with a better plan, a better idea moving forward than the lifetime appointment that Justices currently have?

[Robert Verbruggen]

Lifetime appointments create some kind of weird incentives. You have Justices who are, I mean a, some of them just stick around for as long as they can because they can stick around for life and have more influence that way. You have questions about people's fitness to serve at really old ages. And you also have timed retirements where people try to retire at a time where they think the President will appoint somebody who's ideologically similar to them. So I think it turns over too much power to the individual Justices to decide how much they're going to serve and to in effect be able to have a big say in who replaces them, which I'm not sure makes a lot of sense. The 18 year term, it's sort of kind of a mainstay of proposals to have 18 year terms with an appointment every two years. And I included that in my own idea because I don't really object to it. There's no particular reason it has to be exactly 18, but it's a Nice even number. And it gives you a range where you can appoint somebody who's kind of in the prime of their life and has shown themselves to be a really good judge and has track record built up, but also can serve for 18 years without raising questions about fitness owing to old age.

[Scott Bertram]

I did want to ask about that, which is without being critical of any current Justices, there is a trend now to say, all right, who's the youngest potential justice we can find? Because then that person can serve the longest. If there is a limit on the number of years a justice can serve, will that open up the process? Or is that a way to open up the process to perhaps a pool of more experienced judges, perhaps judges in their 50s or even 60s, many of whom would be just eliminated now due to political reasons, who might be great Supreme Court justices?

[Robert Verbruggen]

Yeah, exactly. I think it shifts the focus a bit. You definitely want to get somebody who's going to have solid faculties for the next 18 years at least. So you don't want to go too old. But it removes that incentive to find somebody who's basically as young as possible who you can be confident in, which is perhaps not the best incentive, and also removes some really great judges from consideration.

[Scott Bertram]

With the idea of a turn limit of some length on the Supreme Court altered the relationship at all between the Supreme Court and lower courts since those judges still would have lifetime appointments.

[Robert Verbruggen]

That's an interesting question. Yeah, I don't know. I'm not sure would necessarily to me, if I'm a lower court judge, I'm not sure I would see that as I'm superior to them because I get my job for longer. But I think lower courts would be, if you're a judge on a lower court, you would be thinking more ahead to the Supreme Court changes on a regular basis. Every two years we get a judge swapped out. And you're thinking a little bit differently about what the precedents are and how your rulings are going to be treated in the near future. A little bit differently than you might under lifetime tenure.

[Scott Bertram]

You explain a way to hold the court at nine seats while allowing these new judges to come on, because we don't know when current judges will either retire or we don't know when they're going to leave the court. So what kind of process do you propose or what kind of idea do you have in terms of allowing those new 18 year judges in this particular example, while again holding that court limit at nine total?

[Robert Verbruggen]

Sure. I mean this is the transition between the two systems would actually be one of the more difficult things, unless you want to do something like some folks on the left do, which is just to kick off the old Justices and the new ones come in. And the idea I had was to so you would have the appointments during odd years, so they're not in election years, to kind of minimize the politics there as well. And essentially what you would do is you would designate a seat for each year. So there would be a 2025 seat, a 2027 seat, a 2029 seat, and so on and so forth through all nine seats. And what you would do is, so say there's a 2025 seat, that seat would be filled either in 2025 if a Justice leaves at that point, or if no justice leaves at that point, it would be filled later on and they would only serve the remainder of the term. So if no justice retires until 2027, then they would only get 18 year term during that transition period. And that would allow you to transition from the lifetime tenure that we have now to a system where you have 18 year terms and every two years the President gets to pick a new Justice.

[Scott Bertram]

Robert Verbruggen with us, fellow at the Manhattan Institute, writer for City Journal and this proposal, these ideas laid out in a National Review piece from a couple of years ago. At the end, you address this problem that you identify in the Senate, which is the difficulty in confirming judges or the possibility that a judge just might, might not be taken up for consideration. And you propose something that you call a reverse filibuster system. Nominee should be presumed confirmed after say, 90 days. The Senate should need a super majority, say 3/5 or even 2/3 to kill a nomination in that time frame. Do you think that the Senate would go along with something like this? And how does that help solve the problem that you laid out at the beginning of our conversation?

[Robert Verbruggen]

Okay, well, first of all, this would have to be done by a constitutional amendment so they wouldn't get a choice is the important thing with that. But the reason is so historically the Senate has rejected a lot of nominees over the years. This isn't something that's brand new that they're rejecting them. But it's such a strictly party line thing today that to me, if you are nominated to the Supreme Court and you don't get a majority, or you barely get a majority, that doesn't necessarily reflect anything about your fitness. That's a purely ideological decision. So if we're going to say that the President is going to have two nominations in each term, he should really get to have those nominations unless he nominates somebody who's so bad and has such deep problems that even some members of his own party are not comfortable with it. So that was my idea for doing that. So instead of saying first, back under the old filibuster system, you would need a super majority to confirm a Supreme Court justice. Now that we're done with the filibuster for Supreme Court nominees, you just need a majority. I'm saying you should actually need a super majority to reject one in order to make this system really work and make sure that the presidents actually get their pegs.

[Scott Bertram]

What do you say to those on the right who essentially say, look, conservatives spent decades in the system electing officials, appointing judges, we're finally seeing the fruits of our labor. Why would we want to change the system that the left operated under for say 50 years or so since the Burger Court and have a lot of liberal ideas make their way through the court? Why would we want to change things now?

[Robert Verbruggen]

Well, the important thing to me is first of all, I very much agree with that. And that is the reason to me, it should be absolutely non negotiable for the right that these things go into effect over time and do not affect the current majority because you don't get to pretend that abortion is a constitutional right for 50 years and then change the rules as soon as the court changes. That can't happen. But to me this is more forward looking. And after that majority kind of erodes, it inevitably does. That's politics. I think we should be looking to the future. You know, what happens after that. I'm not sure that the current system is necessarily any better for conservatives or for liberals going forward. I think we should want a functional system where the president gets to nominate two justices per term.

[Scott Bertram]

Robert Verbruggen is a fellow at the Manhattan Institute and also a writer for City Journal. You can see the outline of this proposal again in a piece of nationalreview.com from a couple of years ago in the midst of a review of Ilya Shapiro's [e-mail] It's called Supreme Disorder, the name of that book. Robert Verbruggen, thank you so much for joining us here on Future of Freedom.

[Robert Verbruggen]

Thanks so much for having me.

[Scott Bertram]

Now to hear another side of the argument about the need for reform of the U.S. supreme Court, we talk with Adam White, Lawrence H. Silberman, Chair in Constitutional Governance and Senior Fellow at the American Enterprise Institute, also a former member of the President's Commission on the Supreme Court of the United States. Adam, thanks so much for joining us.

[Adam White]

I'm glad to be here. Scott.

[Scott Bertram]

I wanted to ask first of all about that commission which existed for about a year back in 2021. The mission was to consider potential reforms or reject potential reforms, depending on how things went to the Supreme Court. What was your experience like serving?

[Adam White]

Sure. Well, this all started, your listeners may recall about four years ago, just about now, the eve of the last presidential election, when Democrats were calling on candidate Joe Biden to commit to packing the court. And he said well, I won't do that. And he had for a long time been against it, but he said I will create a commission to study it. So I was part of that. I joined in early 2021. There were originally 36 members. I think it's fair to say it was probably a breakdown about 29 non conservatives to 7 conservatives or thereabouts. I wouldn't say I was thrilled by the subject matter. I found it interesting. I also found it deeply worrying that we were even that the country's even debating something like core packing. But within, you know, as far as serving on a government advisory board goes and who doesn't love a group project, I actually quite enjoyed my service on the commission. I enjoyed the research, the dialogue and discussions and sometimes debates with my colleagues actually came away from the process much more pleased and impressed by the by the entire situation than I had been when the storm cloud started to to gather around the issue in the first place.

[Scott Bertram]

There's a piece at the Dispatch we'll refer to during our conversation today called don't repackage court packing and there is discussion about various reform proposals. But I want to ask to begin with about the idea of court packing, which you essentially kind of reject out of hand at this point after having served on the commission, that any sort of court packing would be a non starter. Why is that?

[Adam White]

Well, and let me just in case your listeners don't know, I think they probably do. Congress can add justices to the Supreme Court at any time by just a simple act of legislation. It's the number of justices is not written into the Constitution. So it could be done. It would be catastrophic politically and also I think for the workings within the court. And I joined the commission sort of cognizant of that risk. And I'd written on that previously the White House knew what they were getting into with me when it came to the court packing issue. And I think we've seen that since that the calls have really packed the court. They're still out there, but they really have fallen to the side in favor of the much more popular on the left reform proposal now to impose term limits on the justices. Although when we can unpack this a little bit, when they talk about term limits, they tend to talk out of both sides of their mouths on exactly what they're talking about.

[Scott Bertram]

Term limits is going to be a little more of a question because that is something that is stated explicitly in the Constitution and not so as to the size as you referred to previously. When the Constitution was written and we said lifetime term, did we mean lifetime term when people are living decades, perhaps longer than they did 250 years ago?

[Adam White]

Well, that's a very fair question. It's why, when I came to the Commission, I actually was kind of open minded on the question of whether term limits for Supreme Court Justices would be a good thing. As you said, from the very start, Supreme Court Justices have had a life tenure. That is in the Constitution, it says that all the Justices, all federal judges, will hold their offices during good behavior, which from the very start has been well understood by everybody to mean life tenure until retirement or death or impeachment. They can be impeached, but otherwise it's life tenure. And so, as I said, I thought, well, you know, it's worth considering Supreme Court term limits. Life tenure in 1789 meant something very different than life tenure today. I think we can all. I think it's sort of intuitive that appointing somebody at a pretty young age, in their late 40s, early 50s, to a post they might hold for 40, maybe 50 years someday raises real practical questions. But the one thing I knew for certain was if this was going to be done, it would have to be done by a constitutional amendment. Now it's being proposed, but not with a constitutional amendment. The theory goes, which I think is completely wrong, that they can do this by statute.

[Scott Bertram]

And the statute would be this would be this idea about moving Justices to senior status so they're no longer active Justices, which mean they technically still are serving a lifetime term, but simply aren't hearing cases.

[Adam White]

That's right. The main theory that I've heard, the main proposal is that justices would have 18 years to serve. All the normal functions we attach in our minds to a Supreme Court justice hearing constitutional cases and deciding constitutional issues, especially after 18 years, they would be put on a backbench, so to speak. They'd be given senior status, it's called. They would still be called Justices. They'd still have an office, the courthouse. They would often undermine the proposals they'd hear. The most mundane kind of Cases, which is basically what's called original jurisdiction cases, where, say, Colorado sues Wyoming over water rights. Just the senior Justices would hear those kind of cases, but otherwise they would just sit on ice. When I said a moment ago that the proponents for this tend to talk out of both sides of their mouth, here's what I mean by this. This is clearly an effort to end a Justice's service as a Justice for all meaningful purposes after 18 years. That's why they call it term limits. Everybody knows what they're trying to do here. But because they see the constitutional issue, they try to play a semantic game whereby a Justice is still a Justice for purposes of the Constitution, but not for purposes of actually doing the sorts of things that Justices do.

[Scott Bertram]

And you call this proposal, this senior justice proposal, more aggressive than FDR's court court packing scheme from long ago. What makes this so offensive to your, to your senses?

[Adam White]

In some ways it's more, in some ways it is more offensive, actually. When FDR threatened to pack the Court to overcome the power that anti New Deal Justices, the conservative Justices had on the Court at the time, he didn't propose to impeach them. He didn't propose legislation to throw them off the Court. He just said, let's add more Justices that I would appoint just through the sheer raw power of math on the Court. You know, I have to say, four seats maybe, and suddenly you have a majority. But he never tried to throw Justices off the Court. Even FDR knew he couldn't do that, never proposed anything like that. What we have now is, I think, an even more, even more stark assertion of raw power that in the face of the Constitution's explicit protection of life tenure, this legislation would just eject Justices one at a time from the courts. And, oh, gosh, don't, you know, if you look at the math on the, on this proposal, the way it's structured, it seems that Justice Thomas would be the first one who would have to leave the Court. It's funny how that works. I can unpack this at length, and I think the proponents just don't understand really what they would unleash with this in all three branches of government. But just on its face, it is a more raw assertion of power over individual Justices than even FDR had threatened.

[Scott Bertram]

I do want to dig deeper into this general proposal, which pretty much comes down to the idea, as you mentioned, that Justices would serve actively for 18 years and then we'd set a schedule so that each presidential term is allowed to, to nominate two Justices to the Supreme Court, you say that this sets up a spoiled system to each presidential election. Why is that a bad thing to sort of straighten and provide more structure to how this process plays out?

[Adam White]

Well, I'm glad you're focusing on this in terms of the connection between this proposal and presidential power, because there's a lot of damage that this proposal would do within the Court itself and to the Justices and the incentives around the justices. And I think that's pretty obvious. But I think, and this is things I really came to realize the longer I served on the Court Commission and thought about these issues and researched them. We all know that presidents nominate Supreme Court Justices and then get the Senate's advice and consent and appoint them. We know that, that presidents play the lead role by far in that process. And we know that many, many American voters cast their vote for the presidency with an eye to Supreme Court nominations, especially in 2016, when there was an open seat after Justice Scalia died. But even amid all of that, the Senate has a role, a significant role. I've been writing about this for 20 years. It's how I first got interested in these issues 20 years ago. The Senate plays a crucial role. And furthermore, it's not as though the president, each president automatically gets Supreme Court seats. It really comes down to either just the timing of a death or an incapacity or a retirement of a Justice. The proposals we're seeing here to guarantee every presidential term two seats would be fundamentally different. First, it would connect directly presidential elections to Supreme Court appointments. The Senate really becomes an afterthought in this. The basic premise of the whole proposal is that it's somehow unfair for presidents to not get a proportionate number of seats. And I understand that premise. I sort of get why people think in those terms, but it's totally wrong. Supreme Court seats are not just the automatic spoils of a presidential election.

[Scott Bertram]

I want to ask about the balance of power. Right. You already referenced the President, the executive branch, and then the legislative branch in the Senate. If this proposal were to be adopted, there would have to be a way to lessen the Senate's influence in the confirmation process, because you've already mandated that a President gets two nominations. So a Senate could not run out the clock. There had to be some mechanism to force action if you're going to stay on the schedule. Right?

[Adam White]

Yeah, we explored this. The Presidential Commission explored this in our report, pointing out that if the premise of all of this is that Supreme Court seats should be spread out evenly across presidential terms, the logic of that points towards decreasing The Senate's role, maybe the Senate only gets to block one nominee or two nominees or something like that. And if they do more than that, then the President gets some alternative mechanism for appointing a Justice. The premise of all this is that that Supreme Court appointments should be spread evenly across all presidencies. Then the Senate becomes the next point of negotiation. And now while the most recent proposals in Congress for these so called judicial term limits, while it does not touch on the Senate's role, it tees up inevitably a fight over that. Once if we actually were to enact legislation that said the fair way of appointing Justices is to spread them across presidential terms evenly, then it's only a matter of time before a difference in party affiliation between a President and a Senate majority suddenly spurs a so called constitutional crisis over the Senate supposedly not doing its job in appointing or confirming a President's appointee.

[Scott Bertram]

And you also argue that a change like this could lead down the road to more frequent changes or more creative changes. I had to laugh though. Also acknowledge the possibility that something like this could happen where if this proposal says the oldest justices, the longest tenured Justices are moved off first. Well, what stops a Republican led House and Senate from saying no, no, no, no, no. What we want to do now is say you've got to take a 10 year sabbatical in the middle of your term, which then could target Justices like Sonia Sotomayor or Elena Kagan. Once you begin the process, there are many unforeseen machinations that could take place down the road.

[Adam White]

Yeah, throughout all of these debates about court packing and now judicial term limits, I'm always amazed by the lack of deep thinking, or at least thinking over time by the most vocal proponents for these things. Once we've created a national precedent that Congress and a President can just legislate who sits on the court's front bench and who sits on the back bench, we will do it not for the last time, but for the first time and that the next time the partisan stars realign. Of course, a future Congress and a future President would say, well actually, you know, why are we having the most experienced, thoughtful Justices sit on the back bench, you know, when really it's the new Justices that need a breaking in, period. That's how varsity and junior varsity works. Maybe the junior Justices should sit on the bench for, oh, I don't know, maybe the next five years. And like you said, once you start playing around with it, trying to do these games, you can say, well, maybe it should be the ones who are in the middle of a service. They need a sabbatical. The point is Congress doesn't have the power to gerrymander the Supreme Court's personnel to just bring on or off the field the justices that the politicians happen to like at a given moment in time. But somehow none of this ever really lands with the people who want to change this course right now for the most transparent political reasons.

[Scott Bertram]

ADAM One thing that has changed recently in the process is the elimination of the filibuster in the U.S. senate for Supreme Court nominees, started by Harry Reid, continued by Republicans, if the filibuster for Supreme Court nominees were still in existence as it was for quite a long time. Are we having conversations like this today?

[Adam White]

That's a great question, and I don't know how to answer it. Scott to be honest, the politics around the court, the nation's awareness of the politics around the court, the partisan polarization, the polarization of the parties around the individual justices, and also constitutional interpretive methodologies, it's just hard to imagine where we would be now with the filibuster. But I'll tell you, Scott, one of the reasons why I really do worry about the end of the filibuster, probably over some other issue like Roe v. Wade or some other issue restoring Roe v. Wade. Once the filibuster is gone for legislation, it will be a very, very short path to legislation to completely restructure the court and its justices.

[Scott Bertram]

Adam White, as Lawrence H. Silberman, Chair in Constitutional Governance and Senior Fellow at the American Enterprise Institute, AEI.org, also a former member of the President's Commission on the Supreme Court of the United States. Adam, thanks so much for joining us here on Future of Freedom.

[Adam White]

Thanks, Kyle.

[Scott Bertram]

We thank both of our guests for joining us. Robert Verbruggen, fellow at the Manhattan Institute and writer for City Journal and Adam White, Lawrence H. Silberman, Chair in Constitutional Governance and senior fellow at the American Enterprise Institute and former member of the President's Commission on the Supreme Court of the United States. For additional episodes of the Future of Freedom podcast and other fine podcasts from America's Talking network, check out americastalking.com or anywhere you find your audio. Thank you for listening to Future of Freedom, presented by America's Talking Network.