The Buttigieg Plan

 Back when he was Flavor of the Month, Pete Buttigieg put forward a largely-overlooked plan to remove the Supreme Court from partisan politics. Given the current climate, it's worth looking at again.

Buttigieg's plan would be to create a 15 person court. Five of the justices would be picked by Republicans and five by Democrats. Let's stop there and consider the first problem. The Constitution expressly gives the President the power to appoint judges, so we would have to amend the Constitution. Right there, it's likely a fatal plan, but perhaps if Democrats pack the Court in January, all sides can come to an agreement that we need to de-escalate and disarm. Presumably, the Congressional leadership of each party would pick the five judges from each party.

This has also been criticized for making judges expressly partisan, when they are supposed to be neutral arbiters of the law. Dude, please.

The final five jurists (or maybe three...whatever) would be picked by unanimous consent by the current justices. They would be picked two years in advance (presumably you could create a ranked list and if anyone was unable to serve, the next person on the list would take their place) and serve for one term. Again, it would require a Constitutional amendment to allow the judges to pick the other judges.

The flaw here is precisely the opposite of the "flaw" that justices should not be expressly partisan. Judges ARE expressly partisan, for the most part. How will Clarence Thomas and Elena Kagan agree on a slate of jurists? If the nonpartisan judges have to be approved by all ten of the partisan judges (or at least, say, eight) how could that possibly work? 

The express politicization of the Court largely began during the New Deal, when - though not for the first time - conservative justices killed political and economic reforms. The difference between FDR and, say, Teddy Roosevelt was that FDR was willing to change the Court for the same reasons Grant did: to get results that better reflected the popular will of the ruling party. It backfired, but eventually, FDR and Truman dramatically changed the direction of Court. Even Eisenhower accidently pulled the Court to the left by making Earl Warren Chief Justice. What followed is often called the Rights Revolution, whereby the Court embraced civil rights, women's rights, rights of the accused and the right of one person, one vote. "Impeach Earl Warren" signs blossomed across rural America.

Nixon and Reagan inaugurated the Republican push to alter the political composition of the Courts, and right now we are on the verge of a return to Gilded Age jurisprudence that could destroy everything from civil rights to marriage equality to ending almost any government regulation. Seriously. And all of this was done by the minority party. Bush did not win the popular vote, but placed John Roberts on the Court in 2003 and obviously Gorsuch, Kavanaugh and whatever theocratic hellspawn Trump is about to unleash on us were placed by Trump.

The Court has become a political body and Buttigieg's plan attempts to address that by creating the idea of a neutral swing constituency. An additional problem is that a neutral reading of stare decisis and a respect for precedent largely locks in certain rulings that both sides won't like. Ridiculous challenges like the one against the Affordable Care Act will die quick deaths. Terrible campaign finance decisions like Citizens United will remain enshrined. 

In the end, I think Biden - presuming he wins and has a Democratic Senate - should add two justices to make up for Merrick Garland and Ruth Bader Ginsburg. That preserves Roberts as the swing vote. It addresses the theft of the two seats by an illegitimate president. Long term, maybe the Buttigieg plan could be adopted, but for now, it's time to play hardball.