Supreme Court Reform: Desirable -- And Constitutionally Required

92 Southern California Law Review Postscript 29 (2018)

UNLV William S. Boyd School of Law Legal Studies Research Paper

10 Pages Posted: 3 Oct 2018 Last revised: 13 May 2019

See all articles by David Orentlicher

David Orentlicher

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: September 30, 2018

Abstract

As decisions by — and appointments to — the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of 18 years, such that one term ends every two years. That way, less would be at stake with each nomination, justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.

With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.

But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country.

Keywords: Supreme Court, due process, judicial nominations, partisan conflict, ideological balance

JEL Classification: K19, K49

Suggested Citation

Orentlicher, David, Supreme Court Reform: Desirable -- And Constitutionally Required (September 30, 2018). 92 Southern California Law Review Postscript 29 (2018); UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3257780 or http://dx.doi.org/10.2139/ssrn.3257780

David Orentlicher (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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