How to Save the Supreme Court

59 Pages Posted: 27 Nov 2018 Last revised: 31 Oct 2019

See all articles by Daniel Epps

Daniel Epps

Washington University in St. Louis - School of Law

Ganesh Sitaraman

Vanderbilt Law School

Date Written: October 30, 2019

Abstract

The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court’s image and the rule of law badly damaged.

The coming crisis can be stopped. But saving the Court’s legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using “hardball” tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court—but only if we are willing to transform the Court.

Keywords: supreme court, supreme court reform, court packing

Suggested Citation

Epps, Daniel and Sitaraman, Ganesh, How to Save the Supreme Court (October 30, 2019). 129 Yale Law Journal 148 (2019); Vanderbilt Law Research Paper 18-65; Washington University in St. Louis Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3288958 or http://dx.doi.org/10.2139/ssrn.3288958

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

Ganesh Sitaraman

Vanderbilt Law School ( email )

Nashville, TN 37240
United States

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