It is clear that increasing partisanship correlates with democratic erosion. Matthew Graham and Milan Svolik, in a candidate-choice experiment, found that US voters who identified with a certain party were more likely to choose a candidate from the same party in spite of undemocratic positions held by said candidate. This tendency increased as party identification got stronger. These results at first glance would suggest that the less partisan people or ideas are, the more democratic they are. However, that is not always the case, as seen in Supreme Court reform proposals in “How to Save the Supreme Court,” Daniel Epps and Ganesh Sitaraman’s 2019 feature in The Yale Law Journal. One of their proposals to “fix” the Supreme Court attempts to make bipartisan reforms and, in effect, makes the institution less democratic than it is in its existing form.

We have seen democratic erosion occur around the globe, and with it often comes changes to the country’s supreme court or equivalent. Argentina’s Perón had three of the five members of the Supreme Court impeached, and a fourth resigned; they were replaced with loyalists. Peru’s Fujimori, likewise, had three of the seven members of the Constitutional Tribunal impeached after they declared his third run for president unconstitutional. Hungary’s Orbán packed the Constitutional Court with loyalists, increasing the number of members from eight to fifteen. Poland’s Law and Justice Party declined to swear in three justices approved for appointment to the Constitutional Tribunal by the previous parliament; they appointed five new justices to the Tribunal in total and placed a requirement on the Tribunal that all binding decisions must have a two-thirds majority. [1] These moves were made in order to consolidate power and ensure any undemocratic actions or reforms stay in place upon constitutional challenge; Ozan Varol characterizes this as a type of authoritarianism with a democratic veneer that he calls stealth authoritarianism.

In the United States, there are complaints from all sides about the Supreme Court and concern about what seems to be increasing partisanship of the branch of government that was supposed to remain neutral and apolitical. Those who have these concerns point to the increase of 5-4 decisions in which the justices vote along ideological lines on hot-button issues, such as Bush v. Gore, Citizens United v. FEC, and Obergefell v. Hodges. The solutions to this problem vary.

On the right, Senate Majority Leader Mitch McConnell refused to hold a confirmation hearing for an Obama appointee in 2016 due to the spot on the Court being vacated during an election year. President Trump filled that vacancy, as well as the next vacancy that arose, and his nominee for a third vacancy is poised to be confirmed by the Senate in spite of the vacancy occurring in an election year, just as the one four years ago. With these appointments, the Court changed from one with a slight conservative majority with one justice who often was seen as a swing vote to one with a comfortable 6-3 conservative majority. On the left, there are talks of packing the Court to prevent challenges to potential Democratic policy, even from those currently in political office. Needless to say, these actions and proposed actions bear striking similarities to those taken by governments engaging in democratic erosion.

In comes a different plan, proposed by Daniel Epps and Ganesh Sitaraman, law professors at Washington University in Saint Louis and Vanderbilt University respectively, that they call the Balanced Bench. If this plan were to be implemented, the Supreme Court would have fifteen seats. Five seats would be held by Republican justices serving life terms, five seats would be held by Democratic justices serving life terms, and the other five seats would be filled each year by circuit court judges unanimously chosen by the ten partisan judges. The aim of this proposal is to increase the perceived legitimacy of the Court by decreasing the relative partisanship. The theory is that the ten partisan justices would be forced to pick moderate or neutral justices, and, because of that, there would be fewer cases decided by one justice. In addition, the neutrality of the temporary justices would raise the legitimacy of the narrowly decided cases. At first glance, it seems like a perfect compromise, one that would let both Democrats and Republicans have a say in the Court as well as legitimizing and depoliticizing it.

The problem, though, is that the Balanced Bench does not depoliticize the Supreme Court. In fact, it does the opposite. If the Balanced Bench were implemented, it would enshrine the Democratic and Republican Parties in law, a step past even the most extreme court reforms implemented in previously mentioned eroded democracies. No one can argue that US politics operate under a two-party system, one that results from our single-member legislative districts and plurality voting. Whether this system is better or worse than others with more than two parties, often a result of parliamentary systems with proportional representation, is a topic up for debate. Regardless of the result of that debate, though, this proposal would remove the mere possibility of the voters ushering in a new major political party, however unlikely it may be. This is a severe violation of democratic principles. If there is any doubt about this, I point to a reason Tom Ginsburg gives for the implementation of judicial review in new democracies: so that, if the people who wrote the constitution lose a later election, their judicial appointees can continue to push their agenda. [2]

The Balanced Bench is unlikely to be implemented. There are a myriad of constitutional problems, such as conflict with the Appointments Clause, which asserts that the President chooses Supreme Court justices with the consent of the Senate, as well as logistical challenges, like how to figure out if a judge is a Republican judge or a Democratic judge to a degree such that a quota may be fulfilled. So why worry about it? Despite these challenges to its implementation, it has been proposed not only in The Yale Law Journal but also in the 2020 Democratic Presidential Primaries. Candidate Pete Buttigieg supported this proposal as a way to depoliticize the court in the name of bipartisanship. And this wasn’t a candidate who dropped out before voting even began; Pete Buttigieg was a major name in the primary, winning the most delegates in the Iowa caucuses and tying for the most delegates from the New Hampshire primary. Although he pulled out of the race before Super Tuesday, it is still disheartening that a major name in politics supports such a reform to the Supreme Court. It just goes to show that in a time where democracy is under attack through the courts in a partisan manner, we cannot afford to ignore the ways it might come under attack through the courts in a bipartisan manner.

[1] Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).

[2] Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge Unviersity Press, 2003).