I. ONE PROBLEM: LACK OF DIVERSITY
The original version of this essay appeared on a since-discontinued blog. I updated the post after Justice Antonin Scalia died and President Obama nominated Judge Merrick Garland to replace him. The GOP leadership promised not to allow hearings on the nomination; they did not, and Merrick Garland is now, not a United States Supreme Court Justice, but the Attorney General of the United States. You can decide which is the better job, but one is inherently term-limited.
Justice Ginsburg left us in 2020 after a long, exhausting battle with cancer. President Trump nominated, and the Senate confirmed, Notre Dame Law Professor and Judge Amy Coney Barrett to replace her.
Any health-related event to any member of the Court during a Presidential election brings up speculation about the next appointments to the Court. Even without Justice Ginsburg, the present Court is on average one of the oldest courts of the last sixty years. President Biden nominated, and the Senate confirmed, Justice Katanji Brown Jackson to the Court. At fifty-three, Justice Jackson does lower the average age of the justices slightly.
The next President with the opportunity to appoint one or more persons to the Court must begin to reverse several significant imbalances. From time to time there have been calls for increasing the number of justices as well. This essay will address how such an increase (and my ideas for radical court restructuring) would address those imbalances.
For now, I want to focus on the Court’s composition and its lack of diversity. I refer to the Court’s startling lack of religious, geographic, experiential, and intellectual diversity.
The Court is the one branch of the government of the United States which now includes only one Protestant Christian (Justice Jackson, who calls herself a “nondenominational” Christian and thus perhaps belongs to the growing religious “nones” without a formal affiliation.). The Court includes no humanists or Buddhists or followers of Islam. With Justice Steven Breyer’s resignation, only one justice, Elena Kagan, is Jewish. All seven of the others (I include Judge Barrett here) — Chief Justice John Roberts, Justice Samuel Alito, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, Justice Sonia Sotomayor, and Amy Conan Barrett — are Roman Catholic.
Law school professor Jeffrey Rosen observed that “it’s a fascinating truth that we’ve allowed religion to drop out of consideration on the Supreme Court, and right now, we have a Supreme Court that religiously at least, by no means looks like America.” Although Nina Tottenberg of NPR has argued that the present religious makeup of the Court is not a “left-right” issue, https://abovethelaw.com/2010/04/is-the-kagan-nomination-a-done-deal/, that argument does not track with the facts. The antecedent reasons for the Court’s lack of religious diversity can be traced to one decision: Roe v. Wade.
The abortion issue seems to entrance Congress at every confirmation hearing, and, despite the holding in Dobbs v. Jackson Women’s Health Organization, it probably will in the future. Abortion drives Republican presidents’ desire to appoint “pro-life” justices, a desire ineluctably leading them to appoint Catholic jurists. (Of course, common sense and experience tell us that not every Catholic is pro-life; a Pew Research study in 2022 found that “[o]verall, about three-quarters of U.S. Catholics (76%) say abortion should be illegal in some cases but legal in others [while] [j]ust one-in-ten say abortion should be illegal in all cases, with no exceptions, . . . a similar share (13%) take the position that abortion should be legal in all cases, without exceptions. https://www.pewresearch.org/short-reads/2022/05/23/like-americans-overall-catholics-vary-in-their-abortion-views-with-regular-mass-attenders-most-opposed/. Nevertheless we can say with near certainty that Catholic jurists appointed to the Supreme Court by Republican Presidents are likely to fall within that one-in-ten.) Democrat presidents seem equally driven to make sure they are appointing genuine liberals to the Court, particularly with regard to abortion rights, leading Democrat Presidents to appoint Jews. Some commentators have tried to argue that the reason Protestants aren’t represented on the Court is that, somehow, Protestants don’t send their children to law school. Nonsense. The United States remains fifty per cent Protestant. Over sixty per cent of United States senators self-report as Protestant, and sixty per cent of present members of the Senate are lawyers.
But the Court’s lack of diversity doesn’t end with religion. The Court even falls short with regard to geographic diversity; before Justice Ginsburg’s death, four of the nine justices had grown up in New York City. Imagine if forty-four of the members of the United States Senate hailed from New York. That failure of diversity would be unacceptable to everyone in the United States living west of the Hudson River, south of Staten Island, or north of Marble Hill. In addition, six of the nine, again while Justice Ginsburg sat on the Court, had strong ties to the Northeast corridor — New York, Boston, Washington.
Worse, all nine of the justices — Justice Barrett and Justice Jackson did not change this characteristic — have spent virtually their entire lives in academics or government. Timothy P. O’Neill has thoroughly explored this issue in his article published in the Oklahoma Law Review, “The Stepford Justices”: The Need for Experiential Diversity on the Roberts Court.” Professor O’Neill concludes that “It is time to once again assemble a Supreme Court comprised of justices with the varied backgrounds and breadth of governmental experience that are essential for work on the nation’s highest collegial court.”
The sitting justices have little experience in government outside the courts and virtually no experience in the private sector — not even as lawyers in private practice.
Although the lack of religious, geographic, and experiential diversity on the present Supreme Court significantly impacts the extra-legal experience the justices are able to apply to the decisions they review, the most profound lack of diversity on the Court today may be in the justices’ legal and undergraduate education. All nine justices (while Justice Ginsburg was on the Court) attended one of two law schools, Harvard and Yale. Although Justice Ginsburg’s law degree was from Columbia, she transferred there after starting at Harvard. Justice Kagan is a former dean of the Harvard Law School. To a significant degree, the legal views of the Justices were shaped by homogenous student bodies and by the same law professors, the same traditions, the same Ivy-shaded ambience. Justice Barrett broke this Ivy League monopoly, as she pointed out during her hearing before the Senate Judiciary Committee. But even now, 8 of the 9 still share this elite and cloistered background. Perhaps Justice Katanji Brown Jackson’s two years as a public defender adds a little texture to the fabric of the Court, but too much, it seems to me, has been made of two years of such experience. Otherwise, Justice Jackson pops right out of the traditional mold: Harvard University undergraduate, Harvard Law School.
Moreover, no justice has any background whatsoever in science or technology or engineering. Their undergraduate majors were political science, history, English, government, philosophy, and public and international affairs. To be harsh, no sitting justice can claim any direct familiarity with the most significant intellectual achievements of the past two hundred years. Their 18th-century educations at elitist schools have not prepared the members of the Court for their duties in the 21st century. This lack of intellectual diversity, indeed, this lack of mental scope on the Court, cannot be healthy for the Court — or for the country.
The intellectual, educational, experiential, and religious lack of diversity are unhealthy for the Court and the nation. Surely the next President exercising the power of appointment to the Court would do well to appoint a Protestant graduate of a top-twenty-five law school somewhere between the coasts, preferably one of the many lawyers and judges who pursued another career, in business or medicine or technology or engineering, before deciding on law school. American jurisprudence and the Court would be richer for it.
II. SO LACK OF DIVERSITY IS THE PROBLEM; WHAT IS THE SOLUTION?
In the frenetic pace of the news cycle, social media and the mainstream media have now all but relegated to historians the controversies over several United States Supreme Court decisions from recent terms: Dobbs v. Jackson Women’s Health Organization (abortion); West Virginia v. Environmental Protection Agency (regulatory power); Kennedy v. Bremerton School District (school prayer); New York State Rifle & Pistol Association v. Bruen (state regulation of firearms); Carson v. Makin (First Amendment free exercise of religion); Shurtleff v. Boston (First Amendment; city could not deny right to fly Christian flag at city hall). The Court rendered other significant decisions on First Amendment religious issues, Covid workplace requirements, and others. The Court is too important to leave its present structure immutable.
Article III of the Constitution (in its inimitable James Madison-18th-Century-too-many-commas style), is refreshingly spare in its language establishing the federal courts:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
This sentence is a bit like many religious texts in that what is not said is just as important as what is expressed. The Constitution establishes the existence of a “supreme Court,” but it leaves to Congress how to implement the remaining structure of the federal courts. The Supreme Court of the United States (“SCOTUS”) is not a granite and marble edifice in Washington, D.C. Nor is it the original six justices, or the later seven, or the present nine. Similarly, and importantly for the present proposal, the SCOTUS is not embodied in any particular federal judges. Otherwise, the entire court would eventually be vacant.
During the summer recess in 2022, a couple of justices — Sotomayor and Barrett — toured the country touting the Court’s personal collegiality. “Fundamentally,” Sotomayor has said, “I understand that [all the justices] . . . are good people.” Justice Barrett explained the need for collegiality by comparing the Court to an arranged marriage: “We have life tenure, so we get along. You’re not going to rupture relationships with people you’re going to be spending your career with.” Justices Barrett and Sotomayor voted together only 29 times during the 2022 term. “We sing ‘Happy Birthday.’ We do a toast,” Sotomayor protested. Well, that makes everything okay, doesn’t it? But it shouldn’t surprise; politics aside, the justices are virtually identical to each other.
In Rome on July 21, 2022, Justice Alito, author of Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, addressed criticism from foreign officials including French President Macron and Canadian Prime Minister Trudeau, who had criticised his opinion. “I had the honor this term of writing I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law,” Alito said. “One of these was . . . Boris Johnson. But he paid the price.” Alito also suggested that his “liberal” colleagues lack sufficient understanding of the concept of religious liberty. It is notable that these remarks occurred outside the shores of the United States, marking another breach of the tradition of not criticising United States institution when outside its borders.
Justice Sotomayor, to her credit, recognises that the Court is losing the public’s approval. When she spoke in June of 2022 to the American Constitution Society, she said that she wants to “regain the public’s confidence that we — the Court, as an institution — have not lost our way.” My view is a little more cynical. Within the ivory tower of the Court building, the justices have little if any interaction with the public (not that they, the Ivy Leaguers they are, ever had much), and they do not seem to recognize the depth of the public’s distrust.
Now in 2024 finally come revelations about the breadth and extent to which sitting members of the Supreme Court have accepted benefits from various sources, many of which have in the past and almost certainly will in the future hold interests in the outcomes of cases before the Court. Included in the most recent disclosures were a gifted trip to Bali, Beyonce concert tickets, and fine art. In addition, the justices disclosed millions of dollars in advances and royalties on book deals, conveniently exempt from the $30,000 cap on outside earnings..
For all these reasons, I propose that Congress restructure the federal courts in the following manner:
First, the present 9th Circuit should be divided into 3 courts; California alone would make up the 9th Circuit; Washington, Oregon, and Alaska would encompass a new 14th Circuit; and Arizona, Montana, Idaho, Nevada would encompass a new 15th Circuit. This step needs to be taken regardless of any other reforms. The 9th Circuit is simply too big and unwieldy, with 29 active judges to the 1st Circuit’s 6. From time to time, Congress has considered splitting the 9th Circuit into two courts. (HR 320, which would split the 9th Circuit into 2 courts, was introduced in 2021.). My proposal would instead make it three courts with approximately ten judges for each.
Next, with 15 Federal Circuit Courts, we should establish the following structure for the Supreme Court:
Forty-five justices from the Federal Circuit Courts would be designated as Supreme Court Justices. Three would be selected from each federal circuit, each to serve a five-year staggered term. (The Constitution decrees that all Article III federal judges “both of the supreme and inferior courts, shall hold their offices during good Behaviour.” This clause has been interpreted to mean that an appointment to the federal bench is a lifetime appointment. Some may argue that this clause implies that a judge appointed to the Supreme Court bench holds that Supreme Court seat for his or her lifetime, but like much of the Constitution, the interpretation of this clause may be subject to debate. In all events, the present proposal responds to, and outweighs in terms of plausibility, proposals for “term limits” for federal judges. Term limits would require amending the Constitution, and with the present political splits among the states, that notion will remain a fantasy.). In accord with Article II, Section 2, Clause 2, appointed by the President. These judges would sit on the Supreme Court in panels of 15 judges (In 1937, Chief Justice Hughes wrote to Senator Wheeler expressing doubt about the viability of the Supreme Court’s division into sections or divisions: “The Constitution” wrote Justice Hughes, “does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.” With all due respect to Justice Hughes, dividing the Supreme Court into panels is not proscribed by the Constitution, either, and such panels would not function as separate courts, just as the three-judge panels which decide many cases in the federal Circuit Courts do not function as separate courts. No future panel may overrule a panel’s decision — it is effectively the decision of the entire circuit court.). A panel will sometimes request that the entire court review the first panel’s decision. A party unhappy with the decision of a panel may request a hearing “en banc” by the entire circuit court. and would hear cases in the same manner in which the present Court hears cases. As for the sitting 9 Supreme Court justices, they would each become full-time judges for the circuit courts to which they are now assigned (see 28 U.S. Code § 42), and each would be a member of the new 45-justice Supreme Court with terms on the newly-constituted Supreme Court of five years each.
This proposal may seem audacious — even radical. Good. The public disillusionment with the Supreme Court of the United States cries out for a radical restructuring. Most proposals in the popular press, the social media whirl, and even the law journals, call for half measures or, in most cases, impossible dreams such as term limits.
“Court packing” (generally viewed as adding four more justices to the Court; “Court packing” is a pejorative holdover term from Franklin Roosevelt’s plans to add justices after the Court first rejected his New Deal proposals.) — solves no one’s problems and would merely add to the politicisation of the Court. Moreover, adding a mere four justices to the Court would not address the obsessive focus on each individual justice by the media, politicians, and repeat players in the federal courts.
President Biden’s Presidential Commission on the Supreme Court of the United States reviewed the various genres of proposals for Supreme Court reform without advocating for any and deliberately reached no conclusions. The SCOTUS Report identified the following reform proposals within the current debate: (1) Proposals related to the membership and size of the Court; (2) term limits; (3) Proposals to restrict the jurisdiction of the Court; (4) Proposals addressing the Court’s procedures and practices. The “Letter to the President” accompanying the Commission’s Final Report (the “SCOTUS Report”) observed that “the Commission voted unanimously to approve this submission upon concluding that it had met its charge to provide an account of the current debate over the ‘role and operation of the Supreme Court in our constitutional system’ and an ‘analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.’” Summarised, the Commission recommends fiddling while the Supreme Court burns.
Enough with Presidential commissions, studies, and proposals for incremental reform. We need bold ideas for restructuring the Supreme Court of the United States — while we still have a Court, a Constitution, and democratic government. Restructuring in the manner outlined here would substantially reduce the attention (and gifts?) to any particular member of the Court and would provide the mechanism for addressing the social, religious, and experiential lack of diversity on the Court.