The following is an excerpt from “I Spent 7 Months Studying Supreme Court Reform. We Need to Pack the Court Now,” an op-ed written by Kermit Roosevelt, David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School, for TIME.
I spent the last seven months on President Biden’s Supreme Court commission, talking, listening, and sometimes arguing with experts from a variety of legal backgrounds — activists, professors, and former judges. I went into the process thinking that the system was working but that improvements were possible. I came out scared. Our system is broken in two obvious ways that threaten America’s self-governance. One of them is about the long-term legitimacy of the judiciary. The other is an immediate crisis.
These problems overlap. The first is mostly about we could call high politics, or theories of constitutional interpretation. It is generated by the combination of life tenure and Senate confirmation for the Supreme Court, and it is that the composition of the Court is not tied in a predictable and uniform way to the outcome of presidential elections. Some presidents appoint several Justices; some presidents appoint none. What determines how many appointments a president gets is a combination of pure luck and partisan hardball. We do not staff any other branch of our government that way, and it has distorted the relationship between the Court and democracy….
The second problem is related, but somewhat broader. It is generated by the structure of our constitution more generally, which allows a well-placed minority to take over every branch of the federal government… .