How to Save the Supreme Court.

• Author: Epps, Daniel

FEATURE CONTENTS INTRODUCTION 150 1. THE LOOMING THREAT 153 II. WHY SAVE THE COURT? 166 III. HOW (NOT) TO SAVE THE COURT 169 A. Desiderata for Reform 169 B. How Existing Proposals Shape Up 172 1. Term Limits 173 2. Panels 175 3. Court-Packing 175 4. Jurisdiction-Stripping 177 5. Senate-Based Reform 179 IV. SAVING THE COURT: TWO PROPOSALS 181 A. The Supreme Court Lottery 181 1. The Plan and Its Benefits 181 2. The Constitutionality of the Supreme Court Lottery 185 a. Dual Appointments 186 b. The Vesting Clause and "One Supreme Court" 188 c. Supermajority Voting Requirements 190 d. Historical Practice 192 B. The Balanced Bench 193 1. The Plan and Its Benefits 193 2. The Constitutionality of the Balanced Bench 200 a. Appointments Clause Challenges 200 b. Partisan-Balance Requirements 202 CONCLUSION 205 INTRODUCTION

Justice Brett Kavanaugh's confirmation to replace Justice Anthony Kennedy on the Supreme Court was a seismic event for constitutional law and for the American political system. The new conservative majority that Justice Kavanaugh completes represented a stunning victory for the Republican Party after decades of effort by the conservative legal movement--and, by the same token, a significant defeat for Democrats and the American left. But although Republicans look like the short-term winners, the ultimate loser here isn't just their Democratic opponents. It's the Supreme Court itself--and, eventually, the American people as a whole.

Recent events have already taken a toll on perceptions of the Court's legitimacy. Justice Kavanaugh's 50-48 confirmation vote was one of the closest in American history. (1) The vote came after a process that deeply divided the country, when Republicans stuck with their nominee after serious accusations of sexual misconduct--and even after Justice Kavanaugh gave testimony to the Senate Judiciary Committee that many viewed as "nakedly partisan." (2) President Trump's first nominee, Justice Neil Gorsuch, joined the Court only after unprecedented tactics by Senate Majority Leader Mitch McConnell to stonewall President Obama's nominee, Judge Merrick Garland, and leave the seat open. But these debacles were only the latest in an increasingly politicized fight over Justices. The predictable result is a Supreme Court whose Justices--on both sides--are more likely to vote along party lines than ever before in American history. Soon, Lee Epstein and Eric Posner warn, "it will become impossible to regard the [C]ourt as anything but a partisan institution." (3)

That development presents a grave threat to the Court's legitimacy--that is, the degree to which it is perceived as legitimate by the American people. (4) If Americans lose their faith in the Supreme Court's ability to render impartial justice, the Court might lose its power to resolve important questions in ways that all Americans can live with. Raising the stakes even higher, many Democrats are already calling for reprisals like court-packing, (5) which, even if justified, could provoke further escalation that would tarnish the Court's image and damage the rule of law.

Can this coming crisis be stopped? Or, more starkly: can the Supreme Court be saved? We think so. But preserving the Court's legitimacy as an institution above politics will require a complete rethinking of how the Court works and how the Justices are chosen. To save what is good about the Court, we must reject and rethink much of how the Court has operated for more than two centuries.

And the Court is, we think, worth saving. American democracy could likely still function if the Supreme Court had too little capital to stand up to the political branches. But there are good reasons to want to have an institution like the Court that can check the political process and hold us to our deepest commitments. More importantly, in the United States, public confidence in the Supreme Court is impossible to disentangle from public confidence in the very idea of law itself, as an enterprise separate from politics. And a democracy that loses its confidence in law may not long survive.

In this Feature, we offer a framework for thinking about saving the Supreme Court. We explain how only Supreme Court reforms--and only the right kinds of reform--can preserve the Court's role as a neutral arbiter of important questions of law. We begin in Part I by discussing why the Court's legitimacy faces significant peril in the near term. Several factors--such as increased polarization in society, the development of polarized schools of legal interpretation aligned with political affiliations, and greater interest-group attention to the Supreme Court nomination process--have conspired to create a system in which the Court has become a political football, and in which each nominee can be expected to predictably vote along ideological lines that track partisan affiliation. Justice Kennedy--even though he was mostly a reliable conservative--may well be the last Justice to vote against his partisan affiliation in some of the highest-profile cases. With his replacement, the notion of the Court as an institution above the political fray might soon vanish.

Next, in Part II, we consider what kinds of reforms would best protect the Court's perceived role as a legitimate, nonpartisan arbiter of important legal questions. Any solution must have at least three components. First, it must be constitutionally plausible, even if not bulletproof. Second, it must be capable of implementation via statute, given the near impossibility of a constitutional amendment in an age of severe polarization. Finally, even though overwhelming bipartisan support might not be possible at the time of reform, the proposal needs to be stable going forward. That is, it has to be something that both sides might be able to live with in the long term, leading to a fair equilibrium. Unfortunately, some of the most prominent reform proposals do not satisfy these criteria; and in some cases, they would make the Court's politicization even worse.

Most importantly, in Part III, we offer two reforms of our own. We call these the Supreme Court Lottery and the Balanced Bench. We offer these alternative approaches because policymakers might have different views about their viability, if and when Congress takes up Supreme Court reform. For each, we discuss the plan and its benefits and then assess its constitutionality. We think either would be an excellent framework for reform. Though neither would perfectly solve all the problems we identify with the Supreme Court, both would be a marked improvement over the status quo.

Whether policymakers adopt these precise proposals or not, it is imperative that they search for reforms along these lines. Doing nothing means that the Court's legitimacy will continue to suffer in the eyes of the public. The Court risks being gravely damaged by clashes between the conservative majority and progressive politicians, if and when Democrats regain power in the political branches. But nakedly political reforms like court-packing--even if a justified response to Republican escalation--may not lead to a stable equilibrium and could end up damaging the rule of law. The best way to save the Court is to transform the Court.

1. THE LOOMING THREAT

   As many observers have noted, the Supreme Court is facing an unprecedented legitimacy crisis in the wake of Justice Kennedy's retirement and Justice Kavanaugh's confirmation. (6) Commentators identify several serious dangers facing the Court going forward. First is the seemingly undeniable fact that the Court will be more polarized along party lines than at any point in recent history. As Epstein and Posner explain, Justice Kennedy was the last Supreme Court appointee to vote "with any regularity" against the ideology of the President who named him to the Court. (7) Every subsequent appointee has hewn more closely to party ideology; and Justice Kennedy's replacement, Justice Kavanaugh, is by all accounts a reliable conservative who is unlikely to break this new trend. (8) Thus, "[f]or the first time in living memory, the [C]ourt will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents." (9)

   Indeed, even when Democratic President Franklin Roosevelt proposed his famous court-packing plan in the 1930s, his antagonists on the Supreme Court were not all of the opposing party. One of the "four horsemen," Justice James McReynolds, had been appointed by Democratic President Woodrow Wilson. (10) Another, Justice Pierce Butler, was also a Democrat (although one appointed by Republican President Warren G. Harding). (11) Moreover, four of the five Justices who ultimately "broke the logjam" in favor of President Roosevelt's policies were Republicans. (12)

   Similar observations could be made about other points of particular controversy in the Court's history. Brown v. Board of Education (13) ignited a political firestorm. Southern politicians engaged in a campaign of "massive resistance" to the Court's efforts to force desegregation. (14) Yet as controversial as Brown and subsequent desegregation decisions were, it was hard to paint the conflict as primarily a partisan clash between Democrats and Republicans. Brown was written by Chief Justice Warren, a Republican appointee, and was joined unanimously by the eight Democratic-appointed Justices. Meanwhile, most of the Southern opposition was led by conservative Democratic politicians.

   So too with other conflicts. Roe v. Wade (15) generated a significant backlash among conservatives; but the decision was written by a Republican-appointed Justice and joined by four more. A Democratic-appointed Justice was one of the two dissenters. Citizens United v. Federal Election Commission (16) is perhaps the most politically controversial decision of the last decade; but both the majority and the lead dissent were written...