The Case for Fixing the Court

Jonathan Bernstein: “Escalating the hardball isn’t the only way to go. One option would be to threaten to pack the court, but also offer a compromise. Several people have recommended a constitutional amendment that would fix the number of justices at nine, with each serving for a single 18-year term, staggered so that there’d be a vacancy every other year. That would have several virtues. One is that it would improve on the weirdly random nature of Supreme Court vacancies, which is difficult to defend as a matter of democracy. It would also reduce the hold that long-gone election results have on the future. And it would end the strong incentive to nominate very young justices. Some even argue that by regularizing vacancies, it might minimize the vast importance placed on every confirmation fight.”

“I’ve been ambivalent about this proposal, but it certainly has some advantages. And it’s a whole lot better than increasing the size of the court every time we get unified party government, which is where all of this is heading. If Democrats are going to play constitutional hardball, or threaten to, I’d much rather they try to reach a long-term compromise rather than continue to ratchet things up. It might even be in their interest to do so.”