Under current and foreseeable political conditions, the Supreme Court is an absurdly designed institution. Giving life tenure to just nine people, whose tenures expire in haphazard fashions, is an indefensible way to structure a quasi-legislative body, which is what any appellate court of last resort charged with “interpreting” a 230-year-old document will by necessity be.
What can be done about that? One approach would be to get rid of life tenure, and to tie new appointments to presidential terms in a predictable way. For example, one proposal is to limit SCOTUS terms to 18 years, so that two Supreme Court appointments are made during each four-year presidential term. This could, in theory, be done via ordinary legislation rather than by constitutional amendment, by passing a statute that requires a justice to move to senior status on the Court after 18 years. A justice with senior status would only take part in SCOTUS cases when there wouldn’t otherwise be a full complement of nine justices to hear a case, either because of recusal or an as-yet unfilled vacancy.
Technically, the argument goes, this means that the 18-year term limit wouldn’t be removing a justice from the Court, but merely altering the justice’s voting status, thus complying with the constitutional requirement that justices retain their seats unless they die, resign, or are removed by impeachment.
Of course one difficulty with such a statute is that the SCOTUS itself would have to decide on its constitutionality. A further difficulty is that there’s a good argument that all justices affected by the legislation should recuse themselves from hearing it (This problem could be avoided by not applying the legislation to any sitting justice, but that means it would take decades for the law to take full effect).
Another option is to increase the size of the Court. This can definitely — to the extent that word means anything in Trumplandia — be done by simple legislation, since the Constitution grants Congress the explicit power to decide on the size, and, with limited exceptions, the jurisdiction of the SCOTUS. So “court packing” remains as a kind of nuclear option, should the SCOTUS decided that limited terms are unconstitutional.
The practical difficulty with any plan to expand the Court is that either the party that controls the presidency and Congress has to have at least 60 reliable votes in the Senate to pass such legislation, or that party has to be willing to get rid of the legislative filibuster. Now the legislative filibuster should of course be eliminated anyway, since it’s yet another anti-democratic feature of what is an increasingly anti-democratic institution in other ways, but doing so would be a major reform all by itself, that will be opposed ferociously by politicians who are implacably opposed to majority rule, aka Republicans.
Which brings us to an increasingly likely scenario: Democrats win the presidency next year, but fail to take the Senate, which again is structured increasingly in a radically undemocratic — and therefore anti-Democratic Party — fashion, as more and more Americans move to the most populous states (Norm Ornstein has pointed out that fairly soon states containing 30% of the nation’s total population will control 70% of the Senate).
What happens when President Democrat can’t fill Ginsburg’s or Breyer’s seat — or even both of them? One possibility is that the GOP is presented with an ultimatum: allow the seat or seats to be filled, or face full-on court packing in 2022, should Democrats take the Senate then. This naturally would be characterized by the usual coalition of opportunistic right wingers and reactionary centrist pearl clutchers as blackmail, a violation of our most sacred traditions, etc. But it may be the only way to avoid an even more absurdly anti-democratic (and anti-Democratic) Supreme Court in the very near future.
I wouldn’t be surprised if such an ultimatum would be rejected out of hand, and as a consequence a spiraling series of court packing statutes will end up getting enacted over the next couple of decades. This in turn might lead to some kind of rational SCOTUS term limit legislation, allowing the institution to in the future function in a more defensible fashion than the bizarre anti-democratic anachronism it has now become.