March 3, 2021
University of Chicago law professor Daniel Hemel discusses whether the nation’s highest court is facing a legitimacy crisis and, if so, what to do about it.
Daniel Hemel is a law professor at the University of Chicago.
Democrats may control the White House and Congress, but Republicans have a clear advantage on the nation’s highest court.
Sixteen of the last 20 appointments to the Supreme Court have been GOP nominees, including six of nine sitting justices.
Critics say that this has caused an imbalance of power that threatens the court’s legitimacy. University of Chicago law professor Daniel Hemel questions, however, whether some of the reforms being discussed would help.
His paper in the Journal of Economic Perspectives argues that ideological polarization on the Supreme Court is nothing new. And while it’s true that Republicans have dominated recent appointments, proposals like 18-year term limits would do little to address partisan fighting. In fact, term limits could make matters even worse.
Hemel spoke with the AEA’s Chris Fleisher about the history of ideological division on the Supreme Court, proposals for creating a more balanced court, and what changes he believes hold the most promise for addressing those concerns.
The highlights of that conversation, edited for length and clarity, are below and the full-length interview can be heard using the podcast player.
Fleisher: Many Americans view the Supreme Court as a very polarized institution right now. Recent polls have shown that public confidence in the court is down. What does the evidence say about that?
Hemel: I'm not really sure if public confidence in the Supreme Court is down. Gallop since 1974 has been asking people about their confidence in the Supreme Court and asking whether they have a great deal of confidence, quite a lot of confidence, at least some confidence, or none at all. If you look at people answering "a great deal of confidence,” the trend level is pretty flat from 1974 to today.
As for the polarization of the court, we do see something different from what went on in the past. In the past, we had polarized Supreme Courts but they weren't necessarily polarized along party lines. If you look back at the 1930s, Justice James McReynolds and Justice Harlan Stone were very far apart. But McReynolds was a Democratic appointee and a conservative and Stone was a Republican appointee and a liberal. We see that until 2010. In 2010, one of the most liberal members of the court was John Paul Stevens, who was a Republican appointee. Over the course of the past decade, we've seen a new phenomenon in Supreme Court history, where the conservatives all happen to have been appointed by Republicans and the liberals all happen to have been appointed by the Democrats. So, in that sense, we used to have polarization. Now we have polarization along party lines. We have party sorting.
It's not immediately clear to me that's a bad thing. To some extent it provides a check on the justices because everyone understands who the conservatives on the court are and who the liberals are on the court. They can see by matching justices to the party of the appointing president. And the justices don't want to be perceived as purely partisan. I think the party sorting on the court has some checking function.
Fleisher: The confirmation process at least definitely seems to be more polarized than it was decades ago. The conventional wisdom traces this back to 1987 when Ronald Reagan nominated Robert Bork, who was subsequently rejected by the Democratic controlled Senate over ideological reasons. How true is that narrative?
Hemel: Certainly the Bork nomination was an important event for those who lived through it. That said, the break point in terms of the contentiousness of confirmation processes was probably 1968 when LBJ nominated then Associate Justice Abe Fortas to be chief justice and that nomination didn't go through in part because of ideological reasons and in part because of concerns about Fortas accepting money from parties who had business before the court.
We saw bitter confirmation battles through the ‘70s with Nixon appointees. They didn't break down evenly along partisan lines in the same way that Bork did because there were Democratic conservatives that were supporting Nixon nominees. That said, I think the most important predictor of whether a presidential appointment to the Supreme Court will go through is whether the president's party controls the Senate. We had a remarkable period from the 1890s until the 1960s when, almost without exception, the president appointed a Supreme Court justice at a time when his party controlled the Senate. . . . And the contentious nominations we've seen since then that have ultimately failed or that haven't been brought to a floor vote have been at times when the president's party is not the same as the party of the Senate majority leader.
Fleisher: It's definitely true that Republicans have dominated appointments in recent decades. You said earlier that you're not sure that party sorting is a problem. What about the imbalance in terms of the parties who are able to get their judges on the Supreme Court? Is that a problem that needs to be addressed?
Hemel: I think it is a problem. I say this as someone who's pretty liberal. I prefer that the court be to the left of where it is today. Because of lots of appointments by Republican presidents, and most of those justices being conservative justices, the median on the court is to the right of where I am. It's not clear to me that Republicans have some sort of structural advantage when it comes to appointing justices. Some of it was luck, having Democratic appointed justices either die or retire due to health reasons at times when there were Republican presidents. But I think that is one of the issues in the design of the court that we really could change and ought to change.
Fleisher: Eighteen-year term limits is one proposal that people have put out there. What impact do you think 18-year term limits would have on addressing some of the perceived problems of the court?
Hemel: The 18-year term limit proposal is probably the most popular bipartisan one for Supreme Court reform. I don't think 18-year term limits would have an obvious effect on the polarization or on the contentiousness of the confirmation process. I think we would have fought hard about the Barrett confirmation and fought hard about the Kavanaugh confirmation even if these people only held in their hands the future of abortion rights for the next 18 years.
One way of viewing this in economic terms is how different is the value of an 18-year term annuity from a 29- or a 30-year term annuity—however long we think Kavanaugh or Barrett would serve. The answer, as economists can tell you, depends upon the discount rate. I would think that for political actors, discount rates are relatively high. That is, the difference from a Senator's perspective between 18 years and 29 years isn't huge, because they care mostly about the next few years.
In terms of the polarization of justices, I actually think 18-year term limits would lead to a more polarized, better sorted court.
In terms of the polarization of justices, I actually think 18-year term limits would lead to a more polarized, better sorted court. We would have Republican appointees voting conservative and Democratic appointees voting liberal more than we do today. The reason why I think that is because there's a phenomenon on the court of ideological drift. You've got justices who at the beginning are in line with the presidents who appointed them and over time their views evolve.
Right now, justices for the most part don't know when their career on the court is going to end. They have a sense a few months before they're going to announce their resignations or their retirements, but they don't have a set end date. As a result, you get some cooperative behavior among the justices who are repeat players in this game.
Fleisher: You say a more promising direction for court reform would be decoupling appointments and departures. Could you explain that?
Hemel: I think one problem with the court . . . is that the president gets to appoint justices who then have extraordinary influence over the president’s ability to implement her own agenda and maybe even over the president’s reelection. We've seen the Supreme Court decide an election in 2000 and decide not to decide an election in 2020. We generally don't allow people to pick the judges in their own cases. I think one nice thing would be to have presidents not name the justices who would then adjudicate cases involving that president. One possibility could be that Trump appoints his justices and the Trump justices take office after Trump leaves the White House. Biden appoints his justices and the Biden justices take office after Biden leaves the White House. It is decoupling the time of appointment from the time that the justice actually takes the bench.
It also seems to me that we should probably decouple departures from additions. On university faculties, we've got something like life tenure, but when a professor leaves, we don't need to replace her immediately. . . . We could have a rule that every president gets two appointees per term and then those two appointees take office once the next term begins. I say two per term because that more or less matches the rate at which justices have been leaving the court over time.
Fleisher: So if (a president) served two terms, that president would get four appointments?
Hemel: Yes. . . . If it were implemented, there would be two ways of doing it. One would be that President Obama in 2009 enters the Oval office and he gets his two appointments, which he can exercise anytime between 2009 and the end of his first term, and they take office at the beginning of his second term. Another possibility would be that all of the Obama appointees wait until Obama is out. No Obama appointee gets to judge an Obama case. The Obama appointees Justice Kagan and Justice Sotomayor would have ascended to the bench in 2017 when Obama leaves office. Either way you would never have a situation in which a sitting president had appointed more than two members of the court. Whereas we've had instances in the past where the sitting president has appointed a majority of the court.
Fleisher: In your paper you actually say that your analysis doesn't easily lend itself to an urgent call for legislative action. Do you see anything structurally wrong with the Supreme Court? If there is anything wrong with the Supreme Court, what do you see as the major problem and do you think there's something legislatively that could address it?
Hemel: My rosy view of the court doesn't mean that I like every aspect of it, nor do I think that the founders in 1787 necessarily came up with the best possible institutional design. It strikes me that presidents appointing judges who decide whether those presidents could keep office is not ideal. The idea that constitutional doctrine hinges upon the longevity of an octogenarian doesn't strike me as ideal either. I think the decoupling proposal really is one that would improve upon aspects of the court and also is one that we could do legislatively. I don't think that we would need a constitutional amendment in order to implement. Would this be the globally optimal structure? I don't know. But I think it would be an improvement over the status quo.
“Can Structural Changes Fix the Supreme Court?” appears in the Winter 2021 issue of the Journal of Economic Perspectives.