The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court should be reformed. But court packing is a terrible idea.

Anti-abortion activist Cassidy Shooltz chants earlier this week outside the Supreme Court. (Sarah Silbiger/Reuters)

This month’s Supreme Court arguments on Mississippi’s 15-week abortion ban, which did not go well for the pro-choice side, have rattled Democratic senators to the point that more are talking about reforming the court.

“It is hard to watch that — and I did watch a fair amount of it — and not conclude that the court has become a partisan institution,” Sen. Brian Schatz (D-Hawaii) said of the hearings, in which conservative justices appeared ready to gut, if not totally overturn, the landmark Roe v. Wade decision. “And so the question becomes, well: What do we do about it? I’m not sure. But I don’t think the answer is nothing.”

Congress should indeed consider whether to act — but carefully. A new report from a bipartisan presidential commission underscores that court reform could bolster judicial independence and the court’s legitimacy. Or it could do the opposite.

Opinion: The Supreme Court isn’t well. The only hope for a cure is more justices.

It is still unclear what the court will do with Roe, and no single ruling would justify changing the court. That would invite criticism that the legislative branch was further politicizing the judicial one, upending the court because lawmakers dislike the policy outcomes that have resulted from justices’ decisions.

The reasons to reform the court lie largely in political leaders’ machinations, which have discouraged moderation and promoted extremism on the bench. Led by Minority Leader Mitch McConnell (R-Ky.), Senate Republicans have obliterated the fair play and restraint that lawmakers used to exhibit when considering judicial nominees — first by rejecting Obama nominee Merrick Garland and then by ramming through Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, prompting an ideological shift on the court that could spell Roe’s demise.

For their part, presidents increasingly search for relatively young, ideologically zealous nominees rather than those with the most judicious temperament. This has led to an ideological chasm on the court and provided an incentive for ambitious lower-court judges to adjust their rulings to please partisan activists.

Opinion: The Supreme Court isn’t broken. Even if it were, adding justices would be a bad idea.

Some Democrats believe the solution is to pack the court with Democratic nominees, expanding its size, while they still have congressional majorities. This would be a historic mistake. It would sap the court’s legitimacy for no long-term benefit; Republicans could re-pack the court the next time they controlled Congress and the White House.

The commission report points out that, while expanding the court is highly controversial, there is much wider and bipartisan agreement on imposing term limits on Supreme Court justices. Terms could be long — perhaps 18 years — and expire in a staggered manner so that an equal number of vacancies come up in every presidential term. This would lower the stakes of the court confirmation process, diminish actuarial tables and luck as factors in which presidents get to decide the court’s composition, and guard against justices suffering from mental decline while still on the bench. Presidents would be freer to pick justices from more diverse backgrounds. More people would be able to serve on the court, so the preoccupations and quirks of a handful of lifetime appointees would no longer determine the law of the land.

The situation will only get worse without change. Term limits make sense.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; Mili Mitra (public policy solutions and audience development); Keith B. Richburg (foreign affairs); and Molly Roberts (technology and society).