The Volokh Conspiracy
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The Yale Law Journal Forum, YLJ's online companion, has published a new essay of mine: "Supreme Court as Superweapon." It responds to a recent Court-reform proposal by Dan Epps and Ganesh Sitaraman, "How to Save the Supreme Court." Here's the abstract:
Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.
That's the formal law-review version. Here's the quick-and-dirty summary:
Epps and Sitaraman see a Court in crisis. After two brutal confirmations, the Court is split 5-4 on party lines, and calls for court-packing are in the air. So the authors propose two fixes, to keep the Court out of politics and politics out of the Court.
First, they say, we could have a "Supreme Court Lottery," staffing the Court with a rotating cast of appellate judges, randomly redrawn every two weeks. That might bring wild swings of doctrine, so they add two more patches: a limit of 5 same-party appointees, and a 6-3 supermajority for overturning federal laws. The patches are tails that wag the dog: probably unconstitutional and certainly destabilizing. They make the system break down at the first approach of a third party, and they vastly empower Congress over the executive, the states, and individual rights.
Second, they say, we could have a "Balanced Bench," reserving five Court seats for Democrats, five for Republicans, and five more for moderates on whom the other ten can agree. Barring independents or third parties from 10 of the 15 seats doesn't really get politics out of the Court, and we'd still have to worry about a GOP-reserved seat coming open in a Democratic administration (or vice versa). Letting bipartisan commissions or Senate leaders pick the nominees—another suggested patch—would be at war with the Appointments Clause, too.
Why risk all this, just because Justices Gorsuch and Kavanaugh were confirmed? The legitimacy crisis can be found everywhere but in the poll data: the Court has more public support than it did ten years ago. The perception of a 5-4 split isn't new; hardly anyone knew or cared that Justices Stevens and Souter were GOP appointees. And why wasn't the partisan split such a devastating worry when Judge Merrick Garland was nominated—who would also have produced a 5-4 Court, "the most liberal Supreme Court in 50 years"? Criticize the Senate or the electoral college if you want to; but if nominations should follow the popular vote, then you should also blame Justice Souter, whose departures from the GOP platform made him a countermajority of one.
The authors repeatedly praise Justice Kennedy as an unpredictable, middle-of-the-road vote, the very opposite of a partisan ideologue. But the legitimacy you get from moderate judging can trade off with the Court's "internal" legitimacy, the respect for the Justices as experts in legal craft. If you're resting crucial doctrines on "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," why should anyone trust the Justices to enforce decisions made elsewhere? Why not treat them as "politicians in robes"?
From the end of the paper:
In that effort to restore legitimacy, legal conservatives might have a few ideas to offer. Given the depth of our country's polarization, maybe we should require less by way of social agreement, relying somewhat more on private ordering and reducing the number of questions that the political process needs to answer. Maybe we should reduce the scope of that process, encouraging working agreements by different parts of the country when consensus is lacking in the whole. And maybe, to reduce the threat of the Supreme-Court-as-superweapon—capable of vaporizing any target that shows up in the Justices' gunsights—we should precommit to limiting the Court's freedom of action, binding it to some discrete set of preexisting rules until there is a very broad consensus for changing them. (We could even write those rules down on a piece of paper, to be kept in the National Archives—and change them only by agreement of, say, two-thirds of each House of Congress, and some three-fourths or so of the states.)
Limited government, federalism, originalism, and so on may seem like naïve—and convenient—solutions to a bipartisan legitimacy crisis. And perhaps they are. But the Constitution was not designed for a nation of high-school civics teachers, full of corny enthusiasm for powdered wigs and tricorn hats. It was adopted for, and repeatedly amended by, those who had lived through civil war, economic crisis, and profound moral disagreement (over human slavery, among other topics). If, today, in circumstances of relative peace and plenty, our disagreements seem too great for us to bear, perhaps we should think more about the devices they used to make bad compromises when the alternatives seemed even worse.
As they say, read the whole thing!