Editor’s note: This commentary is in response to a guest column written by Sen. Roy Blunt that published online Wednesday, April 28.
On April 9, President Joe Biden signed an executive order forming the Presidential Commission on the Supreme Court of the United States, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”
In a recent Columbia Missourian commentary, Sen. Roy Blunt claims that “an executive branch commission that investigates and analyzes the work of the Supreme Court is dangerous,” as reform “would upend more than 150 years of history.”
It’s important to point out that keeping things the way they are simply because that’s the way we’ve be doing it for a while is not a good argument. For instance, our current Constitution went into effect in 1789, yet women didn’t get the right to vote until certification of the 19th Amendment in 1920. Following Blunt’s line of thinking, you could have made the argument in 1919 that women shouldn’t get the right to vote because it would upend 130 years of history.
Now, I’m sure Blunt supports women’s suffrage because it’s the right thing to do, but my point is this: Just because something has been done a certain way for a long period of time doesn’t mean it’s the best way of doing things. As times change, and as America changes, the way America is governed should also change.
This same line of thinking applies to the Supreme Court. Just because the Supreme Court has operated a certain way for a long period of time doesn’t mean it’s the best way of doing things. Establishing a commission to at least look into the possibility of reform doesn’t strike me as “dangerous,” and calling it so seems a bit like Chicken Little claiming that the sky is falling. Any recommendation this commission proposes would still need to go through Congress, and may potentially require a constitutional amendment, which is a very tall order.
With that said, I do agree with Blunt that “packing the court to further one party’s agenda sets a dangerous precedent.” After the refusal of Republicans to fill the vacancy following the death of Antonin Scalia during the last year of the Obama administration and the subsequent rush to fill the vacancy following the death of Ruth Bader Ginsburg less than two months before a presidential election, many progressives have been calling for Biden to expand the Supreme Court in order to address its perceived ideological imbalance.
However, if Biden is somehow able to successfully pack in a few extra liberal justices, a future Republican administration could further expand the court to reestablish a conservative majority. With each swing of power, each party could then enlarge its respective arsenal of partisan justices, ultimately eroding the legitimacy of the judicial process.
Notably, however, Supreme Court reform does not have to mean a partisan push to expand the court. On the contrary, reform could be targeted toward minimizing political influence.
One possible reform could be to incorporate assisted appointments. Missouri pioneered this approach in 1940 by requiring that the governor appoint state judges from a predetermined list created by a nonpartisan commission that reviews candidates based on merit. Today, 34 states and the District of Columbia use some form of assisted appointments.
Another possible reform could incorporate retention elections. This is when voters are asked whether an incumbent judge should remain in office. Retention elections allow for judicial accountability as citizens periodically have the power to oust judges that regularly make unpopular decisions. Twenty states — including Missouri — now use some variation of this process.
Former Supreme Court Justice Louis Brandeis once argued that “courageous states” can serve as a “laboratories” of democracy because “novel” policy innovations can be tried out and then, if successful, spread across the country. For decades now, the Show-Me State has served as an example for other states that wish to minimize political influence over the courts. Perhaps instead of Blunt dismissing Supreme Court reform efforts out of hand, he should argue that any discussion of possible reform should begin by using Missouri as the template.
Joshua Holzer is an assistant professor of political science at Westminster College and a resident of Columbia.