By Andrew Gardner, DCI Fellow
On February 11th, the DCI had the privilege of hosting an expert panel and deliberation on the topic of Supreme Court reform, an issue that has become especially salient in the last few years. We had the chance to hear from some of the leading scholars on this topic, each presenting a unique and thought-provoking perspective on the possibility of court reform. Ryan Doerfler proposed ways to disempower the court by limiting its jurisdiction and requiring supermajorities to pass critical decisions. Kent Greenfield presented his idea of a separate Constitutional Court to address some of the most controversial questions of constitutional law. Finally, James Lindgren made the case for term limits for Supreme Court justices.
While the panelists may have disagreed about their proposed solutions, there seemed to be consensus in identifying the problem: the modern Supreme Court has become too politicized and partisan. Each proposed reform tackled the issue of judicial partisanship in its own way. Dr. Doerfler and Dr. Greenfield seek to limit the prerogative of the court in hopes of removing it from the most vitriolic of partisan battlegrounds. Dr. Lindgren’s plan aims to routinize the nomination process by imposing regular term limits while also ensuring justices do not serve beyond their capacity for either personal or political reasons.
While it was fascinating to hear these experts speak on such an important and interesting topic, my favorite part of the evening came after the panel had concluded, when we broke into small groups to discuss what we had just heard. It was the first time the DCI has hosted a deliberation with this panel-discussion model, and I was encouraged by the results. Hearing experts weigh in on the topic before beginning our deliberation gave everybody a foundation from which they could approach what is undeniably a difficult question and gave me, as a facilitator, plenty of opportunities for specific questions.
It was rewarding as a facilitator to see my group struggle through some of the tough questions posed by the prospect of Supreme Court reform. We seemed to agree that the politicization of the Court was a problem, but like the panelists we had difficulty finding a solution we could all agree on. By the end, the group seemed to be mostly unanimous in supporting the idea of term limits, but even then, we acknowledged the limitations of such a proposal in its ability to mitigate partisanship.
The greatest challenge we faced, and one in which I’m sure the experts share, is the inextricable tie between politics and law. Removing the Supreme Court from politics, we felt, is to remove it from its innate purpose. What role does the Court serve if it is disallowed from weighing in on the issues which people cannot find political consensus? Reducing the greatest legal institution in the land to an arbiter of dry, inconsequential legal questions seems antithetical to its place in American politics. Thus, we felt the issue was not removing the Court from politics, but partisanship from the Court.
Sadly, an hour was insufficient time for a small group of non-experts to resolve a decades-long enigma, but I was nevertheless encouraged by the quality of our discourse and am certain that everybody, myself included, came away from our conversation with new perspective and insights.