How to Save the Supreme Court

37 Pages Posted: 27 Nov 2018 Last revised: 3 Apr 2019

See all articles by Daniel Epps

Daniel Epps

Washington University in St. Louis - School of Law

Ganesh Sitaraman

Vanderbilt Law School

Date Written: April 1, 2019

Abstract

The consequences of Brett Kavanaugh’s confirmation to replace Justice Anthony Kennedy on the Supreme Court are seismic. The new conservative majority that Kavanaugh completes represents a stunning victory for the Republican party after decades of effort by the conservative legal movement. The result is a Supreme Court whose justices—on both sides—are likely to vote along party lines more consistently than ever before in American history. That development presents a grave threat to the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court to render impartial justice, the Court’s ability to reach settlements of important questions that all Americans can live with is serious jeopardy. Raising the stakes even higher, 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 tit-for-tat escalation that would leave the Court’s image, and the rule of law, badly damaged.

The coming crisis can be stopped. 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. In this Essay, we outline a framework for thinking about saving the Supreme Court, evaluate existing proposals, and offer two distinct reform proposals of our own, which we call the Supreme Court Lottery and the Balanced Court. Whether policymakers adopt these precise proposals or not, however, it is imperative that they search for some kind of reforms along these lines. Saving the Court—by transforming the Court—is our best hope.

Keywords: supreme court, supreme court reform, court packing

Suggested Citation

Epps, Daniel and Sitaraman, Ganesh, How to Save the Supreme Court (April 1, 2019). Yale Law Journal, Forthcoming; 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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