I Choose, You Decide: Structural Tools for Supreme Court Legitimation

Abstract

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different, and perhaps complementary reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I cut, you choose” procedure for ensuring fair division — only here, it manifests as “I choose, you decide.” This proposal, rather than attempting to correct any supposed institutional deficiency that exacerbates the effects of partisanship, instead seeks to create a structure of checks and balances by pitting partisanship against partisanship.

Keywords: Supreme Court, Federal Courts, Court Reform, I Cut You Choose, Game Theory