May 14, 2021

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Want to depoliticize the Supreme Court? Don’t pack it, follow Britain’s lead

4 min read

It seems like just yesterday. On the campaign trail, Joe Biden said he was “not a fan” of court packing. Then he promised to look into court reforms for a system he deemed “out of whack.” And now, a new commission has been created to officially consider the expansion of the U.S. Supreme Court. Time moves so quickly.

Nevertheless, President Biden’s intentions here seem to be good. Plus, the commission itself is apparently weighted against the idea of court packing. But the problem that Mr. Biden says he’s trying to solve is that of the fundamentally political nature of Supreme Court appointments in the United States. And if Mr. Biden is sincere in his desire to depoliticize the court, that’s wonderful. There are ways to do that. Packing the court isn’t one of them. 

Mr. Biden, a Democrat, is clearly trying to throw his fellow Democrats a bone. After all, court packing would benefit them in the short term. It would mean more of their appointments will sit on the court and that its future decisions will more likely side with a liberal jurisprudence. 

And it makes sense that frustrated Democrats could justify that. For more than 50 years, Republican appointees have held a majority in the Supreme Court — a reality that seems unlikely to change anytime soon, as currently only three of the nine Supreme Court justices are Democratic picks.

However, if one party takes such a step, then it’s inevitable that the other party will follow. Since the 1800s, a strong political norm emerged against court packing, and for good reason. In fact, that norm is so strong that the last time packing was attempted, it was rejected by a Congress controlled by the same party as the presidency. If Mr. Biden were to pack the court, that norm would be dead, and it would now be acceptable to pack the court whenever the arithmetic doesn’t suit a given president. 

This may seem like quite a non-issue, given that judges are free to interpret the law how they see fit. But that’s a bit of a pipe dream. Presidents always appoint judges who will interpret the law with a jurisprudence that will help the White House achieve their goals. It’s why many recent cases in the Republican-dominated court have created significant benefits to the Republican Party, at the expense of mass-disenfranchisement of minority voters and an increase in dark money entering campaigns.  

The only solution to this Supreme Court partisanship appears to be constitutional change. And a look at Britain could give America a clue on what exactly to shift. 

In short, Mr. Biden should push to take court appointments away from the presidency and Congress by creating a new, technocratic “Judicial Appointments Commission.” That’s what we did in Britain, and it worked out pretty well. Prior to 2005, all judicial appointments in the U.K. were made by the queen on the recommendation of the lord chancellor. In practice, this meant a member of the government had complete power over judicial appointments. 

No one else had any say — the lord chancellor could simply appoint anyone they felt would best serve their goals. I imagine most Americans would find this intolerable, as it erodes the safeguards against tyranny that the separation of powers provides. However, for hundreds of years this system reigned unchallenged in the United Kingdom.

The cracks in the system were all too evident. Lacking any external accountability mechanisms, the lord chancellor was able to appoint anyone they wanted to support their political and social objectives. It’s why, as late as 1991, homosexuals were prohibited from sitting on the bench. 

Eventually, we solved these problems. In 2005, the Blair government passed the Constitutional Reform Act. This took away the power from the lord chancellor to make appointments and gave it to an independent commission made up of a mix of experts, laymen and lawyers. Appointments were no longer politicized; they went to the candidate best suited for the job. In addition, this proper separation of powers helped to safeguard against tyranny. America seems to have a similar problem. It could have a similar solution. 

Where the power over appointments lies with political bodies, it will never be the case that they’ll vote for people in the interests of American democracy. Rather, they will vote for whichever candidate helps them achieve their goals. This takes away a huge reason we have the courts — to keep the lawmakers in line. 

It may be a hard change to make in America. And while the British constitution is not entrenched (making changes a lot easier to enact) our reforms show an effective pathway to depoliticizing the courts. For the sake of a politically-divided America, let’s hope Mr. Biden stops wasting time considering bad options and instead considers following Britain’s lead.

• Tom Spencer is a contributor for Young Voices UK and studies Law at City, University of London. He is also the chief organizer of the London Neoliberals.

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Tom Spencer
2021-04-22 17:24:14

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