2020 presidential candidate Pete Buttigieg has a plan to overhaul the Supreme Court, and although it’s probably impossible to get any worse than the system we have now, Mayor Pete sure is giving it the old college try.
Buttigieg’s fellow contenders for the Democratic nomination have backed a wide range of solutions for the Supreme Court, from FDR-style court-packing to doing absolutely nothing. Buttigieg, though, has been touting a plan since at least March to expand the court to 15 members, with 10 justices—five each chosen by Republican and Democratic presidents—coming together to appoint a rotating cast of five appellate judges as the final five members.
In an interview with NBC News published Monday, Buttigieg formally laid out the plan (emphasis mine):
In an NBC News interview in front of the Supreme Court, Buttigieg said he would support “whatever Supreme Court reform will depoliticize this body” and stop the court from being viewed as “an almost nakedly political institution.”
“The reform of not just expanding the number of members but doing it in a way where some of them are selected on a consensus, nonpartisan basis, it’s a very promising way to do it,” Buttigieg said. “There may be others. But the point is, we’ve got to get out of where we are now, where any time there is an opening, there is an apocalyptic, ideological firefight. It harms the court, it harms the country and it leads to outcomes like we have right now.”
Under the plan, most justices would continue serving life terms. Five would be affiliated with the Republican Party and five with the Democratic Party. Those 10 would then join together to choose five additional justices from U.S. appeals courts, or possibly the district-level trial courts. They’d have to settle on the nonpolitical justices unanimously — or at least with a “strong supermajority.”
The final five would serve one-year, nonrenewable terms. They’d be chosen two years in advance, to prevent nominations based on anticipated court cases, and if the 10 partisan justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term.
As NBC News points out, “the idea is similar to what’s used in commercial arbitration,” in which the swing vote arbitrator is agreed upon by both sides. Running the government like a business is good again, baby.
The biggest problem with this, to start, is Buttigieg’s diagnosis of the problem. For him, the main issue isn’t that the Republicans stole a Supreme Court seat, gave another one to an accused sexual predator, and have been packing the appellate bench with right-wing ideologues handpicked by the Federalist Society in order to stymie whatever policy goals progressives have for the next 30 or 40 years. No—for Buttigieg, the problem is that the Supreme Court has become politicized, a thing which it has been from its earliest days.
The Buttigieg Supreme Court plan also appears to be premised on the idea that the Republicans are anxious to keep the government alive and functional, an idea which the last decade of national politics really should have put an end to. (Remember the supercommittee?)
And from a purely practical standpoint, what incentive could conservatives—who have a rock-solid 5-4 Supreme Court majority as it stands, and will fight any plan (even a “fair” one) which alters that tooth and nail—possibly have to vote for enough judges to allow a quorum to go into effect? If the Supreme Court doesn’t rule on a case, the lower-court ruling stands. And as we’ve already discussed, the Republicans now have a death-grip on the appellate bench, thanks to Mitch McConnell.
Real change to structural institutions in the United States is exceptionally rare. If you’re going to try to reform a body as antiquated and anti-democratic as the Supreme Court, go big. Otherwise, what’s the point?