The Supreme Court faces a crisis of legitimacy. The process of selecting new justices has become both contentious and overtly partisan, as illustrated by the Republican-controlled Senate’s refusal to hold hearings or a vote for President Barack Obama’s Supreme Court nominee, followed by the fractious hearings and party-line vote to replace “swing” Justice Anthony Kennedy with Brett Kavanaugh. Now that Kennedy has retired, all nine justices are expected to cast votes in line with the preferences of the party that appointed them. As Justice Elena Kagan warned, it is “a dangerous time for the Court” because “people increasingly look at us and say ‘this is just an extension of the political process.’” In a recent article entitled “How to Save the Supreme Court,” Professors Daniel Epps and Ganesh Sitaraman put it bluntly: “The Court must radically change—or die.”

First published as a shorter piece in Vox, Epps and Sitaraman’s article proposes two radical structural changes to the Supreme Court that they believe would reduce the partisanship surrounding the nomination process and the court’s decisions. As they put it, to “save what is good about the Court, we must reject and rethink how the Court has operated for more than two centuries.” They contend that both reforms could be accomplished by statute rather than constitutional amendment.

Under their first proposal, which they dub the “Lottery Court,” all 179 judges on the federal courts of appeals would also be appointed associate justices of the Supreme Court, joining the existing nine for a total of 188 justices. Nine of these 188 would then be selected by random lottery to sit as justices of the U.S. Supreme Court for revolving terms of just two weeks in length. During those two weeks, the nine would have all the power of the current Supreme Court, except that they could only strike down federal legislation as unconstitutional by a minimum two-thirds vote. Every two weeks, a new group of nine randomly selected justices would replace them, and the former group of nine would return to their appellate courts.

The Lottery Court would have far-reaching effects. Epps and Sitaraman predict it would diminish the significance of Supreme Court appointments in presidential elections because voters would not know which of the nearly 200 potential justices would sit on any particular case coming before the court. For the same reason, the Lottery Court would also decrease the partisanship of judicial confirmation hearings. The gamesmanship around the certiorari process would change significantly as well, because the nine justices selecting cases would have no idea which nine would eventually decide them. The Lottery Court would also prevent the emergence of a “swing” justice whose views would dominate briefing, argument and decisions in cases, as has so often happened in the past.

But the Lottery Court comes with many potential pitfalls. Each new group of nine justices might vote differently on important and recurring issues, undermining the finality and stability of the law. (The authors hope to ameliorate that problem by requiring a two-thirds supermajority to invalidate federal legislation as unconstitutional, but that rule would only apply to a small number of cases.) The quality of the justices’ legal reasoning and research would likely decrease, at least for some cases. And the rotating cast on the court might also run afoul of Article III’s requirement that the judicial power be vested in “one Supreme Court” — though that is debatable.

Epps and Sitaraman’s second proposal, which they label the “Balanced Court,” is just as radical. They suggest that the court’s size be increased to 10, five chosen by Democrats and five by Republicans. These 10 justices would then together choose another five jurists from the courts of appeals to serve alongside them for a one-year term, and that choice must be made either by unanimous vote or by a supermajority. If the 10 justices can’t agree, the court would lack a quorum and could not hear any cases for that year. Like the Lottery Court proposal, the Balanced Court proposal would reduce the significance of Supreme Court nominations and thus diminish the partisanship and posturing that currently accompany the appointment process. Epps and Sitaraman also expect that the 10 “partisan” justices would select five new colleagues based on those jurists’ reputations for “fairness, independence, and centrism” — precisely the qualities that are less valued in the current process. The authors hope this change would “restore something important that we fear has been lost: the notion that Supreme Court justices are deciding questions of law, in ways that don’t invariably line up with their political preferences in the biggest cases.”

Epps and Sitaraman are not the first to suggest structural reforms as a solution to partisan judicial selections and decisions. For more than a decade, scholars have argued in favor of imposing 18-year term limits on the justices. Such limits would ensure that a single president cannot control the court many decades after leaving office, and would evenly distribute appointments across presidential terms. But Epps and Sitaraman oppose term limits for practical and policy reasons. They think term limits would only exacerbate the politicization of the appointment process by turning every presidential election into a referendum on the Supreme Court and the candidates’ preferred nominees. And, like most legal scholars, they believe term limits would require an amendment to the Constitution, and so would be nearly impossible to achieve as a practical matter.

More recently, legal scholars have dusted off the idea of “packing” the Supreme Court by adding to its membership. The Constitution does not prescribe the size of the court, and Congress has altered its membership repeatedly in the past. (Indeed, by refusing to confirm Obama’s nominee for the court, Congress effectively shrank the court to eight during October Term 2016.) Professor Michael Klarman recently argued in favor of court-packing as a “remedy” to what he views as “the Republican Party’s hijacking of the Court,” and to offset the two recent appointments made “by a president who lost the popular vote by nearly three million votes” that were “confirmed by a majority of senators who represented a minority of the American population.”

Court-packing also has its problems. The size of the court has officially remained at nine since 1870, and President Franklin Roosevelt’s proposal to increase the court’s size in 1937 was soundly rejected. Some scholars argue that a nine-member court is an unwritten constitutional norm. Moreover, if the Supreme Court’s current crisis stems from politicization, then court-packing could make it worse, which would in turn further undermine the court’s legitimacy.

Admittedly, all these proposals are unlikely to make it into law anytime soon, and perhaps for good reason. Court-packing, term limits, and Epps and Sitaraman’s Lottery Court and Balanced Court proposals are radical and constitutionally debatable changes to a staid institution, and might come with unintended consequences that could further damage the Supreme Court. (Readers interested in the pros and cons of these and other court reform proposals might want to watch a video of a recent American Constitution Society panel, which includes commentary by Robert Bauer, Aziz Huq, Ganesh Sitaraman and me).

Nonetheless, Epps and Sitaraman’s proposals are a valuable reminder that the court’s current structure is not set in stone, and that Congress has significant constitutional leeway to alter the court’s composition and the rules under which it operates. If the Supreme Court is broken, then it is time for Congress and the American people to think about ways to fix it.

Posted in Academic Round-up, Featured

Recommended Citation: Amanda Frost, Academic highlight: Epps and Sitaraman on how to save the Supreme Court, SCOTUSblog (Dec. 18, 2018, 4:15 PM), https://www.scotusblog.com/2018/12/academic-highlight-epps-and-sitaraman-on-how-to-save-the-supreme-court/