A few weeks ago, United States Supreme Court Justice Clarence Thomas said that debate over increasing the number of U.S. Supreme Court seats might “compromise” or “chip away at the respect” of the institution by politicizing what should be an impartial body. Less than two weeks later, it was revealed that Thomas’s wife, Virginia, had urged then-White House Chief of Staff Mark Meadows to overturn the results of the 2020 presidential election. In the past few years, the Supreme Court and its members have become shrouded in controversy, due not only to the judges themselves but the circumstances surrounding their appointment.
Ironically, Thomas made his comments about protecting the court from politics at an event for the foundation of former Sen. Orrin Hatch, R-Utah. In 2016, Hatch took a leading role in blocking the confirmation of Merrick Garland, who was nominated by former President Barack Obama to fill a vacant Supreme Court seat. Hatch and his Republican colleagues, who controlled the Senate at the time, argued that by keeping the seat empty, voters would have an opportunity to influence the court’s composition through the 2016 presidential election. Garland went on to be appointed attorney general last year by President Biden. The Senate confirmed him with a 70-30 vote, demonstrating that a significant number of Republicans approve of his qualifications at least for that role.
In 2017, President Donald Trump appointed Neil Gorsuch, a staunch conservative, to fill the seat Democrats intended for Garland. Gorsuch was approved by a 54-45 vote only after Republicans abolished the filibuster for Supreme Court confirmations. Sen. Chris Coons, D-Del., who voted against Gorsuch, recently admitted that his decision to vote against the “eminently qualified” nominee furthered partisan animosity over judicial appointments. Years later, the swift — not to mention hypocritical — appointment and confirmation of Justice Amy Coney Barrett made it clear that Republicans cared little about voter input. They were instead looking for an opportunity to keep conservative control of the Supreme Court. It was during the confirmation of Barrett that some prominent Democrats — including Democratic Senate leader Chuck Schumer, N.Y., began publicly considering expanding the Supreme Court.
While Barrett and Gorsuch are controversial because their seats are considered “stolen,” controversy around Justices Clarence Thomas and Brett Kavanaugh is centered on the men themselves. In addition to his wife’s political activities, Thomas’s confirmation hearing is infamous because of Anita Hill, who accused Thomas of sexual harassment and was, in return, grilled by members of the Senate Judiciary Committee. One of those members was Orrin Hatch, who suggested some of her charges were inspired by “The Exorcist.” More recent allegations against Brett Kavanaugh from Christine Blasey Ford offer a clear parallel.
On top of increasingly prevalent issues with their own Supreme Court appointees, Republicans have stepped up attacks on judges nominated by Democrats. Republican Senators aggressively questioned Judge Ketanji Brown Jackson’s sentencing record on those convicted of child sexual abuse — ignoring the reasons for Jackson’s rulings in order to bring about damaging headlines. Sen. Tom Cotton, Ark., went as far as suggesting that Jackson would have defended Nazis in court.
In his comments in Utah, Thomas worried about the future of the Supreme Court. This isn’t about the future, though — the Supreme Court has been compromised by politics.
Republicans have ignored serious character flaws in the cases of Thomas and Kavanaugh, selectively prevented confirmation hearings to capture Barrett and Gorsuch’s seats and stepped up character assassination toward Democratic appointees. Democrats’ not entirely unjustified anger towards four associate justices isn’t going anywhere. Neither is Republicans’ willingness to aggressively capture Court seats. Sen. Lindsey Graham, R-S.C., has said a Republican-controlled Senate would not have considered Jackson. Sen. Mitch McConnell, R-Ken., said it is “highly unlikely” a Republican Senate would consider a Biden Supreme Court nominee in 2024.
Graham, who played a key role in furthering criticism of Jackson’s sentencing record, voted to confirm Jackson to the U.S. Court of Appeals seat last year — a moment that brought far fewer cameras. Sen. Chuck Grassley, R-Iowa, who was praised by Democrats for his comparative respect towards Jackson, agreed with a constituent who said Republicans like Graham and Cotton were looking for media coverage. Sen. Ben Sasse, R-Neb., made a similar statement about the Senate as a whole during the hearing.
When it comes to adding justices to the court, most people seem to be in agreement. Polling estimates that 72% of Republican voters think the Court should have nine justices. Even among Democrats, only a minority — 43% — think the Court should be expanded. Democratic politicians have similarly hesitated to support measures to pack the court with liberal justices. House Speaker Nancy Pelosi, D-Calif., does not plan on bringing a bill by Sen. Ed Markey, D-Mass. and Rep. Jerry Nadler, D-N.Y., to add four seats to the court to the floor. Sen. Brian Schatz, D-Hawaii, said the proposal “probably couldn’t muster 40 votes.”
In 2016 Senate Republicans stole a Supreme Court seat by arguing that voters should have a say. In 2020, as Republicans rushed to confirm Barrett, Democrats — including then-nominee Joe Biden — emphasized the importance of allowing voters to have a say. The Supreme Court now is more unpopular today than it has been in recent history. The six-to-three conservative majority threatens Roe v. Wade, which remains popular among voters. Thomas and fellow conservative Justice Samuel Alito maintain criticism of Obergefell v. Hodges, the case that legalized same-sex marriage — which is also quite popular. The solution seems obvious: Let the voters have a say.
Fourteen states elect members of their state Supreme Court in nonpartisan elections, including Michigan, where parties still endorse and support officially nonpartisan candidates. Seven more elect justices with partisan ballots. Melinda Gann Hall, a political scientist at Michigan State University, argues that partisan judicial elections result in the same qualifications as nonpartisan elections while drawing higher voter turnout and engagement. Hall also claims that interest group spending and negative campaigning — pertinent issues in other campaigns — have no “harmful consequences for the legitimacy of courts in states electing judges.” While there is evidence that judges running for reelection hand down harsher sentences in criminal cases, that problem is easily solved — limit justices to serving one term. Term limits are a popular solution, too — 72% favor them for Supreme Court justices.
Judicial campaigns would also expose the political preferences of Supreme Court candidates early on, allowing voters to vote against overly ideological candidates if they believe that appropriate. And, even if publicly electing justices wouldn’t stop the politicization of the Supreme Court, it would ease both Democratic anger towards some members of the court and Republican fears of liberal court-packing. Democrats would have a fair chance to recapture seats they view as stolen, Republicans would have an equally fair opportunity to defend them. In other words, public elections wouldn’t stop politicization as much as embracing it.
Though publicly electing justices violates Article II of the U.S. Constitution, and would therefore require an amendment, this proposal should draw bipartisan support. As Supreme Court expansion becomes a more mainstream position in Democratic politics, Republicans will have stronger incentives to compromise — public elections would only endanger the conservative Supreme Court majority, but court-packing would outright eliminate it. Most importantly, though, public elections would leave responsibility for an increasingly partisan Supreme Court with voters, instead of with an increasingly partisan Senate.
Quin Zapoli is a Senior Opinion Editor and can be reached at qzapoli@umich.edu.