Democrats’ effort to change the setup of Supreme Court is now set in motion. On Wednesday, a group of them launched an effort to add four justices to the Supreme Court — a number that in theory could flip the court to a 7-to-6 liberal majority — while President Biden last week launched a promised commission to review such proposals.

The fate of adding justices, also known as “court-packing,” seems sealed from the outset. Democrats are pushing it as a response to Republicans’ successful gamesmanship with recent Supreme Court nominees, but they have just 50 votes in the Senate and no real prospect of making it law. At this point, it’s more of a messaging bill than anything else — an attempt to impact the debate. And indeed, Biden’s move to set up a commission is largely seen as an effort to kick the can down the road on an idea which he doesn’t support but is big in parts of the liberal base.

But that doesn’t mean other changes short of court-packing couldn’t be considered. And there are some interesting ones floating around.

Let’s run through a few of the more intriguing ones, while looking at the ins and outs of each.

Two new justices per presidential term

Alicia Bannon of the Brennan Center for Justice wrote a lengthy analysis last month looking at this idea, a version of which has also been promoted by University of Chicago professor Daniel Hemel and others. Basically, it would mean every president gets to appoint two justices, regardless of how many justices wind up serving on the court.

Bannon’s argument:

To discourage obstruction, these two seats should “open” in the first year of the president’s term, and they should expire if they are unfilled at the end of four years so as not to provide a windfall to a future president. As new justices join the bench and sitting justices depart, the size of the Court would fluctuate and likely stay above the current nine justices, and it would include periods with an even number of justices. Over the course of 20 years the Court would likely expand to somewhere in the range of 15 justices. Critically, such a change could be implemented without a constitutional amendment.

The idea is that this would far dilute the impact of when justices either retire or happen to die. Democrats wouldn’t need to worry as much about the justices they appointed departing with a Republican president in charge (such as with Ruth Bader Ginsburg’s death last year), and vice versa. Justices themselves wouldn’t need to be as concerned about who the president is if and when they retire, nor would there be as much pressure on justices to retire to avoid the possibility that they might die later on when the other party might be in charge — i.e. the current situation with Stephen G. Breyer. Retiring or dying would still dilute the impact of a justice’s side on the court, but it wouldn’t be so pivotal. So much right now is dependent upon the rather arbitrary life span of justices.

As Bannon acknowledges, this proposal could still be vulnerable to gamesmanship. If the opposite party controls the Senate for a president’s entire four-year term, for example, they could simply block whatever nominees that president puts forward. But doing so over a longer period of time — and giving voters a chance to weigh in on such obstruction via a midterm election after Year 2 — would make that more difficult.

Another potential issue is that the Supreme Court might regularly have an even number of justices, which isn’t unprecedented but might make it more difficult to get a final word from the nation’s highest court.

And lastly, there’s the possibility that it could make presidential elections even more of a proxy vote for Supreme Court justices. This is clearly already a consideration for voters, but court vacancies are never a guarantee. Knowing that electing Biden would effectively add two left-leaning justices to the court or that electing Donald Trump would give you two right-leaning ones could make our already increasingly parliamentary and polarized elections even more so, given the importance of the Supreme Court.

Term limits

Another idea that gets at the above aim — and has often been combined with the above proposal — is term limits. All federal judges have lifetime appointments. Even some who have pushed for expanding the Supreme Court have floated term limits as an alternative. Norm Ornstein has been talking about this for many years, even before the current fervor built for overhauling the court.

The number floated for Supreme Court justices is often 18 years.

“I don’t think someone should have that much power in an unelected position for that long,” former attorney general Eric H. Holder Jr. has said. “I think that three senatorial terms, 18 years, would be enough for a justice.”

The big upside to this proposal is, again, that it creates more predictability, with much less depending upon the timing of justices either retiring or dying. It could also expand the pool of potential justices, given the increasing push to nominate younger and younger justices who could serve on the court for longer. From a merit standpoint, why not be able to pick the best jurist (as long as you believe they can serve 18 years) rather than try to get three or four decades of service from a smaller universe of 40-somethings?

The biggest potential problem with this proposal is its practicality. While the first idea could be done by a simple vote of Congress, changing justices’ term limits could require a constitutional amendment — an extremely high bar and likely a prohibitive one — given the Constitution says justices “shall hold their offices during good behaviour.”

Generally, that’s understood to mean they serve unless and until they do something that warrants their removal. But some advocates have floated the idea of a workaround: Justices, after 18 years, would still technically be on the court but would have “senior” status, in which they don’t hear and decide cases unless called upon. Some Democrats proposed a bill last year that would do just that.

Another issue is whether term limits would apply to sitting justices, which also creates thorny issues. That bill exempted them, applying the change only to future confirmed justices.

A Supreme Court ‘lottery’

Many have floated the idea of a truly bipartisan court. Generally, the idea is an even number of Republican and Democratic appointees, potentially adding others selected by those justices on a bipartisan basis.

This, though, ignores how the population might shift, favoring one party or another more strongly and wanting a court that reflects that. It also ignores that many Americans don’t align with either of the parties. And it would be very difficult to pass constitutional muster.

A more practical proposal would be a court that shifts, based upon random selection process of the federal judges who might decide a given case in the highest court. Vox summarized such a proposal thusly:

A separate proposal ... would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court.
The basic idea is that each of the approximately 180 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation’s highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)
It may seem random, but this is more or less how federal appeals courts already operate. Most appeals court cases are heard by randomly selected panels of three judges, although a larger panel consisting of all the active judges on the court will occasionally hear exceptional cases.

This would still put a premium on who is a part of that universe of appeals court judges, but it would make it much more difficult to game the system, as shifting the balance on those 180 judges is much more difficult than shifting the balance of nine Supreme Court justices. It would also make it much more difficult for a handful of justices to change the course of American jurisprudence for years or even decades at a time.

The biggest apparent benefit, though, could also be its biggest drawback: the randomness of it all. It creates the possibility that the justices picked to decide an extremely important case — one that would create a huge precedent for the Supreme Court to deal with in the future — would randomly be stacked in favor of judges nominated by one side or the other who might not reflect the overall balance of the judiciary or the country. That could create massive and much more frequent shifts in how our laws are interpreted.

A bipartisan selection process

This proposal gets at the idea of reform from a different angle: Whenever vacancies might arise and however long justices might serve, it would create some kind of a process under which nominees would be selected on a more bipartisan basis.

This is a more amorphous idea for which there are fewer specific proposals, and the devil is in the details. But what if, for each vacancy, both parties had a stake in selecting the nominee rather than simply whoever was in charge? What if the parties had to go through a process in which a number of potential nominees would be considered, with a premium on ones who had some support on each side (even adjusting for the relative power of each party)?

There is something of an analog when it comes to how certain states fill Senate vacancies by gubernatorial appointment. If the vacancy comes from one party and the governor is of another party, it’s up to the party of the former senator to put forward a list of names and then allow the governor to pick from them.

There are huge problems with this, though, including whether it would require a constitutional amendment, given the Constitution vests the authority to nominate judges in a president. It could also, depending upon how it is set up, dilute the impact of voters who might elect a president with a strong Senate majority.

But given the increasing premium on picking nominees who would appear to be reliable votes for one side or the other, creating some sort of a process under which there is less emphasis on judicial philosophy and more on picking qualified, more middle-of-the-road jurists could take down the temperature on an increasingly politicized court.