Reforming the Court
Since the retirement of Justice Anthony Kennedy and the ascension of Justice Brett Kavanaugh to the Supreme Court, the Democratic Party has suddenly become aware of the dangers arising from a high court empowered to impose its will on nearly every contentious political issue — concerns that conservatives have been voicing for decades. As a result, figures on the left have raised a chorus of demands to change the Court, fearing that the political victories won there over the past half century may now be in jeopardy. While conservatives might be tempted to sit back and enjoy a period of judicial dominance, a more far-sighted approach may be to view this as a unique opportunity to pursue major institutional reform to address the problems that have plagued the Court for so long and may do so again.
To be sure, many Democratic proposals are little more than partisan red meat, such as a court-packing scheme to take back the Court's "stolen" seats. Nevertheless, amid the silliness, there are some serious proposals. In particular, two Supreme Court experts, Daniel Epps and Ganesh Sitaraman, have put forward two ambitious institutional reforms in the Yale Law Journal that have caught the attention of several Democratic presidential candidates. One proposal would alter the Supreme Court selection process by drawing justices from the pool of circuit-court judges on a rotating basis. The other would attempt to balance an enlarged 15-seat Court through a new appointment process, with one-third of its seats appointed by Republicans, one-third by Democrats, and the final third selected unanimously for one-year terms by those 10 partisan appointees.
Some of the specifics of these plans are quite problematic, as they are clearly designed, at least in part, to defend progressive sacred cows that may be put in jeopardy by a conservative Court. Nevertheless, the core of each proposal — the reform of the judicial-selection process — could serve to mitigate two related grievances that conservatives have had against the Court for years: first, that it is too activist, deciding questions that ought to be the object of democratic deliberation; second, and relatedly, that it has based its constitutional decisions on the subjective, amorphous values of five justices, rather than on objective legal standards.
Though some on the right have recently argued for more "judicial engagement," conservatives have long held that the Court is too activist, imposing its will with sweeping decisions that transform the constitutional and political landscape with the stroke of a pen. Judicial activism is, of course, a somewhat amorphous term. An activist judge could be defined as one who ignores written text, one who overrules precedent, or one who uses the power of judicial review too rashly, overturning legislative enactments without sufficient justification. All of these are part of the concept, and we will particularly examine the nuanced role of precedent below. Despite disagreements on what precisely activism consists of, there has long been conservative consensus that the Court ought to use its powers (especially that of judicial review) in a more reserved and cautious manner.
This activism is often made possible by a jurisprudence detached from objective legal standards, especially the standard of textual meaning. As Keith Whittington wrote in his 1999 book Constitutional Interpretation, "The judicial requirement of a fixed text not only authorizes judicial review but also limits it within the context of determinate meaning." Freedom from constitutional text and other objective guideposts allows judges to play the role of statesmen, making policy on a host of issues, including many not mentioned in the Constitution at all. These two tendencies, when combined, effectively foreclose the possibility of the republican constitutionalism envisioned by our founding generation.
These tendencies are also the cause of the Court's politicization and the reason why all judicial nominations, not just that of Justice Kavanaugh, have become partisan circuses. As the late Justice Antonin Scalia observed, the power to shape the Constitution according to the justices' own preferences inevitably gives rise to the "new phenomenon of selecting and confirming federal judges...on the basis of their views regarding a whole series of proposals for constitutional evolution." Once we accept the Court as an unchallenged authority, capable of rewriting the supreme law of the land in an instant, partisanship and politicization are inevitable.
But what to do about all this? One strategy — simply trying to fill the Court with justices who are committed to restraint and text-based interpretation — may seem to have paid off. Five justices who generally espouse these principles now sit on the Court, striking fear in progressive hearts. It is dangerous, however, to simply enjoy this thin majority while it lasts. Increasingly, Americans view the Supreme Court as just another political institution enforcing this or that ideological or partisan position. And just as parties come into and out of power in the White House and on Capitol Hill, so the pendulum will eventually swing in the other direction at the Court, leaving an institution that not only has abandoned judicial neutrality, but which may no longer even feel the need to pay lip service to it.
A more far-sighted answer may be institutional reform, so it is worth seriously considering the selection proposals detailed by Epps and Sitaraman. Both of the new methods they outline should appeal to conservatives, as they incentivize neutrality, judicial restraint, and more objective decision-making. The first proposal — what I will call the "circuit-court rotation" — should be the most appealing to conservatives; indeed, a variant of it was even proposed by now-Senator Josh Hawley in these pages in 2012. The second — what I will call the "concurrent-majority system" — is less attractive, but also worthy of consideration. Both have the potential to significantly redirect the Court's approach and possibly revive the American constitutional tradition.
TIME ON THE BENCH
The circuit-court rotation, or what Epps and Sitaraman call the "Supreme Court lottery," would draw Supreme Court justices from the pool of circuit-court judges to serve for a brief term before returning to their positions on their circuit courts. Epps and Sitaraman also include several other major reforms in this proposal, as well as a specific set of details regarding term length and selection. I limit consideration here, however, to the basic idea of rotating justices pulled from the lower courts, recognizing that many vital details would have to be agreed upon should such a reform ever be seriously considered.
Regardless of such specifics, the general idea of a rotation on the bench would revolutionize the incentives of Supreme Court justices by moderating the immediate impact of their decisions. The Court would have to adjust to these incentives, and the end result would likely be a Court that would continue to fulfill the constitutional role it plays today, but with more internal and external constraints.
These constraints would arise primarily out of the operation of precedent. The doctrine of stare decisis is, in theory, a norm that should appeal strongly to conservatives, even in constitutional cases: Interpretations that have stood the test of time, have consistently been affirmed, and are anchored in a common understanding of personal rights and the belief that our system of self-government ought not be overturned on a whim. As Justice Neil Gorsuch recently put it, "Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges."
As it currently operates in relation to the Constitution, however, a firm doctrine of precedent serves to promote judicial activism by solidifying the primacy of a particular set of justices in all constitutional matters. In the 1958 case Cooper v. Aaron, the Court famously made the quasi-metaphysical claim that its pronouncements were not merely binding and authoritative interpretations of the supreme law of the land, but that they were themselves the supreme law of the land. This "vox SCOTUS vox Dei" attitude has given rise to the sense that whoever sits on the bench has absolute and unchallenged authority to decide all of America's most pressing constitutional questions. Such authority serves as a powerful temptation to justices to enshrine into that law their own political and ethical views.
The institutional structure of the Court serves to reinforce this sense of unrestrained authority and, therefore, to reinforce the incentive to activism. Once the Court offers an authoritative interpretation of the Constitution, there is no reason to believe anyone other than that same set of justices will be asked to reassess, limit, or elaborate upon that decision for many years. As a result, important decisions are either not challenged at all, or they are reaffirmed and elaborated upon by the same justices who made them in the first place. By the time the makeup of the Court has changed significantly enough to incorporate different perspectives, the decision has been established as "longstanding precedent," and new justices are strongly compelled to defer to it. Rather than establishing the collected wisdom of generations, therefore, precedent — when combined with judicial supremacy — merely fossilizes the subjective views of nine (or five) judges as the law of the land.
Some conservative critics of the Court challenge the very idea of judicial supremacy with a departmentalist alternative. Departmentalism holds that each department of government may act according to its own interpretation of the Constitution within its proper sphere of activity, essentially giving other branches of government the ability to resist the Court's interpretation of constitutional language in certain areas. While this may moderate judicial supremacy, it also could easily undermine constitutional government by allowing the political branches to ignore constitutional limitations — hardly a better alternative. The circuit-court reform presents a different solution, one that moderates judicial supremacy from within by softening the precedential effect of decisions, rather than empowering the other branches to ignore the Court.
The circuit-court reform would likely prevent individual Supreme Court decisions from instantaneously settling political controversies, and it would encourage a healthier — and more conservative — version of judicial precedent. Given the fact that new justices would continually be coming onto the bench, decisions would likely be challenged very quickly after they are decided (just as the other branches, states, and private litigants hasten to challenge old precedents as soon as a potentially transformative appointment takes place under the current system). While still restrained by the desire to promote stable law, respect reliance interests, and support the institutional integrity of their own branch, a new set of justices would be free to grant certiorari for a similar case if they find the initial decision egregiously incorrect or in need of significant clarification or limitation. A third set of justices would then likely hear the merits of this new case, with an opportunity to reformulate, limit, or even completely overturn the previous decision.
A single Supreme Court decision would, therefore, no longer have the immediate sense of finality that it does today, unless and until it is affirmed by several slates of justices. In this system, an unchanging set of justices could not, by itself, establish an essentially unquestionable precedent. Only when an issue has repeatedly been brought before courts made up of a great variety of justices, and has either been reaffirmed on the merits or denied another hearing would it gradually attain the strength of generally accepted horizontal precedent. At this point, states and the other departments of government would gradually lose their incentive to challenge it. Constitutional issues would, therefore, be settled slowly and gradually through a collective process only after several reinforcing decisions.
This is the kind of precedent that embodies the conservative adherence to time-tested and widely accepted principles, and according to John McGinnis and Michael Rappaport, it is the form of precedent most in line with the concept's meaning in the founding era.
RADICAL REFORM FOR CONSERVATIVE ENDS
It is, of course, likely that constant rotation of temporary justices would lead to a high rate of reversals and a heavy incentive for states and other branches of government to challenge the constitutional interpretations of the Court. This, some might say, would amount to a kind of constitutional anarchy. If the Court were to rule a certain way on a contested and consequential constitutional question but then immediately reverse itself, will the people, the states, and the other branches of government have any clear sense of the law that actually governs them? While this system would introduce a degree of such uncertainty, there are reasons to believe it would not be anarchy.
First, the operation of vertical precedent (the absolute adherence of lower courts to the Supreme Court's rulings) would remain unchanged, meaning that the decision of the Court would be uniformly enforced unless and until it was reversed.
Second, while the new structure of the Court would give states and the other branches of the federal government an incentive to continue periodic challenges to the Court's interpretations, it would not authorize outright resistance to them in the way strong forms of departmentalism do. Such challenges may take the form of "testing the limits" of a decision and only occasionally pushing for outright reversal. This would simply mean that constitutional questions would continue to be active until a genuine consensus arose.
Third, the Court itself would likely adjust to this new context in an attempt to preserve its institutional influence. No justice would wish for his opinions to be overturned in the next term and subsequently forgotten. As such, there would be a strong incentive for justices to craft opinions in a way that would appeal to as many judges as possible. Highly ideological opinions detached from legal standards may sometimes attract five out of nine, but they would be unlikely to appeal to the broad array of justices that would be called upon to reaffirm them. There would be a strong incentive to decide cases on narrow grounds, leaving as little as possible for future courts to object to. Judicial restraint would be the most likely path to lasting relevance.
Along similar lines, this adaptation may encourage justices to appeal to those legal principles that are likely to be acceptable to a wide variety of judges. What source is most likely to fit this description? The text of the Constitution or statute before them. The argument for textualism, at its core, relies upon a simple truth: that to understand the meaning of a document, the most obvious and objective place to look is the plain meaning of the text. As Justice Scalia and Bryan Garner observed, "properly informed human minds may agree on what a text means," despite the fact that they "often disagree on what is right." The tools of the "living Constitution" tend to be vague, highly subjective conceptions of certain values that lack the clarity and relative objectivity of textual analysis. If textualists genuinely believe in the greater objectivity of their approach, it would follow that, all else being equal, decisions limited to textual meaning may be more likely to be accepted by the next set of justices than sweeping decisions based on abstract, personal values.
The result of such a reform would amount to a moderate step in the direction of what Greg Weiner has recently referred to as a "republican constitution" — one whose meaning is discerned through the collective activity of the people through their representatives. It is also moderate, however, in that it would maintain the Supreme Court's role as primary expositor of the Constitution, and thereby not stoke the fears of those who see dangers in placing more influence over essential constitutional rights in the hands of majorities. It would stop short of the departmentalist alternative to judicial supremacy, but would create a new incentive for states and the other branches to continue to press constitutional issues before the Court, while also creating internal constraints on the Court's ability to transform the law.
Certainly, the system would by no means be foolproof. Undoubtedly, the Court would, from time to time, still create new rights out of thin air or blatantly ignore the words of the Constitution. These decisions, however, would at the very least be liable to further testing before being generally accepted.
While this change seems radical on its face (and it would be one of the most significant changes to our governing institutions in American history), there are some reasons to see this proposal as a conservative reform, rather than a constitutional revolution. First, the Supreme Court, at any given time, could continue to function in the same manner as it currently does. Nothing would need to change about the way the Court chooses its cases, hears those cases, decides them, or writes opinions. The only change would be the personal makeup of the Court and the incentives that operate upon the justices' thought processes.
Second, the selection method would preserve the judicial independence and the indirect selection method the founders envisioned. The elected branches of government would continue to have an influence on the makeup of the Court by their appointment of the circuit-court judges, thereby satisfying James Madison's criteria in Federalist No. 39 for being a republican institution. While the judges would not sit on the Supreme Court for life, they would still "hold their Offices [as federal judges] during good Behaviour," satisfying the requirements of Article III. And by taking their direct appointment to the Supreme Court out of the hands of the political branches, it would ensure that the Court maintained the judicial independence that life terms were intended to achieve.
Finally, this proposal draws on a tradition of interaction between the Supreme Court and lower federal courts. The original federal trial courts established in 1789 utilized two Supreme Court justices to serve as judges, and the justices continued to "ride circuit" until 1911. Even today, justices continue to handle certain unique responsibilities in a circuit to which they are assigned. Neither the Constitution nor tradition suggests that there should be complete separation in duties between the Supreme Court and the inferior courts.
There would undoubtedly be problems and unintended consequences that would need to be addressed. But a rotating Supreme Court drawn from the circuit courts has the potential to restore American constitutionalism in ways conservatives have vainly attempted for decades.
A CONCURRENT-MAJORITY COURT
The second proposal Epps and Sitaraman bring forward is what they call "the balanced bench." In this scenario, the Court would consist of five justices appointed by Republicans, five justices appointed by Democrats, and five additional justices unanimously selected from the circuit courts by those 10. Though the authors do not note it, this approach is a kind of concurrent-majority system: It recognizes that the interests that make up society will, if free to do so, seek to bend political institutions to their own purposes, so an institutional structure must develop to ensure that no particular interest is capable of utilizing the levers of power for its own benefit.
Concurrent institutions therefore aim to create a structure in which those self-interested groups are forced to compromise and arrive at conclusions that appeal beyond their own immediate goals. Partisan or ideologically motivated groups must be forced to think about and appeal to the common good. In theory, this could eventually evolve into an institutional ethic that fosters a genuine concern for objectivity and moderation.
A Supreme Court established on concurrent principles could indeed promote such deliberation and achieve some of the same goals as the circuit-court rotation. The key is that the five independent justices would have to be chosen unanimously, forcing compromise between the two blocs of party-selected justices. Should they be unable to choose those five, the Court would lack a quorum and be unable to hear cases. Justices would have to be chosen by ideologically neutral criteria. Legal acumen and a reputation for fair-mindedness would likely be prized in a way that they are not in the current system. No longer would circuit-court judges need to "audition" for the Supreme Court by standing out as ideological activists. There would be an avenue to promotion — perhaps a more attractive avenue — by standing out as a judge who fairly and objectively applies the law.
It may be argued that this would simply result in five ideologically moderate justices rather than five accomplished and fair-minded ones. But this may be less likely than it first appears. The justices rarely think and speak about one another in the highly ideological language of outsiders. Justice Ruth Bader Ginsburg, for instance, recently defended her new conservative colleagues as "very decent, very smart individuals." While justices would undoubtedly prefer to appoint colleagues who share their viewpoints, there may be enough comity and respect on the bench to arrive at consensus on highly qualified jurists. If a justice can't appoint someone who shares his ideological proclivities, a fair-minded applier of the law is the next best choice.
Under this system, as under the circuit-court rotation, opinions would need to be carefully crafted to attract votes beyond an ideological bloc. Narrow, restrained opinions would be more likely to attract a majority, just as the Court now often unifies more easily around limited decisions. The more sweeping and transformative an opinion, the less likely it would be to attract enough support from fair-minded justices. Further, decisions based on the obvious meaning of the relevant text may be more likely to persuade judges who are not motivated by the abstract values of one ideological wing or the other.
Another consequence of the concurrent-majority system would be an increase in the number of plurality opinions with separate concurrences. Once the justices vote on a particular case, one justice is tasked with writing the Court's opinion, hoping to craft it in a way that all those justices voting with the majority can accept. The greater the number of justices on the Court, however, the more difficult it would be to write an opinion acceptable to a majority. In such cases, the Court issues a plurality opinion, which, while having the same effect as a majority opinion on the case in question, carries much less weight when it comes to precedent. In fact, as a general rule, when looking back to plurality decisions, future courts are limited to applying the narrowest of the varying opinions as binding precedent. More plurality opinions would limit the Court's ability to reshape the Constitution in single decisions, leaving more contested constitutional questions open.
This proposal is certainly imperfect. First, it would not alter the effect of precedent as drastically as a rotating slate of justices would. It would, however, contain other inducements to restraint and moderation, as noted above. Second, it would institutionalize our political parties in an unprecedented way. But while the institutionalization of political parties may be a difficult pill to swallow, it merely recognizes the reality of a Court that is polarized and politicized from the outside. Democrats and Republicans both expect their appointees to toe their lines, and under the current system there will always be a vicious partisan battle to control that Court.
Concurrent-majority theory holds that a key to moving past such a reality is to recognize and accept it to a limited extent so as to mitigate its consequences. For good or ill, political parties are an inescapable part of our political process and political identities. Historically, vital constitutional reforms often emerge after an acceptance of unfortunate social realities that must be accommodated. The two-party system and the partisanship that comes with it have been a permanent part of our political system. Accommodation and containment may be the best way to prevent it from further corroding our institutions, and the concurrent-majority system would do just that: accept the role of partisanship, but only to the extent necessary to balance it and limit its effects.
Finally, it is also possible that the justices would arrive at an impasse on appointments, potentially prompting a crisis. Concurrent-majority theory, however, would indicate that the necessity created by such an impending crisis is precisely the motivation needed to prompt compromise between intransigent groups. Given the respectful and cordial views justices have of one another, it may not be as serious a problem as it first appears. Furthermore, the justices would be highly attuned to the reputation and influence of the Court. This would serve as an even stronger inducement to compromise.
In any event, the current appointment process is likely headed toward another crisis the next time a Court vacancy arises in a situation of divided government. For the foreseeable future at least, it is difficult to imagine any circumstance in which a party in control of the Senate would confirm the choice of the opposing party's president. Moreover, in this looming crisis, there will be no inducement to compromise at all.
AN OPPORTUNITY FOR RESTRAINT
Judicial review was not a positive authority granted by the Constitution. Rather, it emerged out of the inexorable logic that demonstrated the need for judges, when carrying out their normal responsibilities, to ensure the laws they apply are within the limits of constitutional meaning. The current politicization of the Court is the result of this essentially passive power having been, as the Anti-Federalist Brutus warned, "exalted above all other power in the government, and subject to no control." One cannot simply roll back this centuries-long evolution by making convincing arguments against judicial supremacy. If we are to return to a more moderate and restrained conception of judicial review, some type of structural reform is in order.
To be sure, one ought to be suspicious of any major overhaul of our governing institutions. But to those who value the neutral rule of law, it should be clear that change is in order; the current institutional setup of the Court is unlikely to provide neutral, restrained results in the long term. While it may be tempting to enjoy several years of 5-4 conservative decisions, the pendulum will eventually swing back, bringing the same problems that have rankled conservatives for decades, but with even less hope of establishing a nonpartisan ethic in the future. Further, the necessity of public trust in governing institutions is a foundational principle of conservatism. Therefore, even if one believes the five conservative justices are genuinely and objectively applying the law, the increasingly prevalent public belief that the Court is a partisan institution ought to be worrisome, whether or not it is true.
Both of these basic reforms, if they were to be crafted and implemented in a careful manner, could address longstanding conservative complaints against the Supreme Court. They are designed to restrain judicial activism and make it less likely that the Court's definitive interpretations will simply be the outgrowth of the subjective values of five justices. They offer a strong incentive for justices to rule narrowly and appeal to arguments, like those based on clear textual meaning, that are convincing to judges who do not share their ideological proclivities.
A reformed Court may not always produce welcome outcomes. There may be some instances (Second Amendment cases are an obvious example) in which judicial restraint may lead to more liberal results. Against this objection it may simply be observed that no institutional structure can provide consistently correct results when society as a whole, and judges in particular, are divided on essential constitutional issues.
As Justice Oliver Wendell Holmes, Jr., famously observed in his Lochner dissent, the Constitution "is made for people of fundamentally differing views." And sadly, there are "fundamentally differing views" on our understanding of the Constitution itself. The most we can hope for in cases in which the Court fails to arrive at our favored outcome is that the constitutional debate continues, and that the Court's views do not radically transform the society in which we live. Our current system does not provide for this, but the reforms discussed here would take a step in that direction.
It would certainly be a Herculean task for such reform proposals to get anywhere near adoption in Congress. Epps and Sitaraman argue that their proposals could be established entirely by statute, but a plausible argument can be made that either reform would require constitutional amendment.
If ever there were a small window of opportunity for needed reform, however, it is now. If liberal Court experts, and even progressive presidential candidates, are now promoting judicial restraint, it may be a rare historical opportunity for bipartisan action. Taking advantage of this window to advance meaningful institutional reform may be the best chance to save the Court's reputation and revive genuine constitutionalism.