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

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

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.

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.

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)

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.

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)

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)

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.

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)

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.