Democratizing the Supreme Court
71 Pages Posted: 3 Nov 2020
Date Written: July 29, 2020
Progressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and academic left following the 2008 financial crisis and the hotly contested appointments of Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the successful implementation of ambitious legislation like the “Green New Deal.”
Despite this once-in-a-generation energy around the idea of court reform, the popular and academic discussion of how to reform the Supreme Court has been unduly constrained and is now at risk of closing prematurely. This is the case with regard to its mechanism and its purpose alike. On the left, historical memory has limited debate almost entirely to “court packing.” Meanwhile the center has occupied itself with how to restore the Supreme Court’s legitimacy, rescuing the institution from its regrettable slide into partisanship. And now with the Court appearing to moderate to preempt legislative reform of the institution, the concern is that progressives will drop their demands for change, satisfied with a few modest judicial concessions.
This Article aims to keep the discussion of court reform alive and, just as importantly, to significantly expand its bounds. It does so, first, by urging progressives to reject the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme.
Second, the Article introduces a distinction between two fundamentally different mechanisms of reform. The first type of reform, which we call personnel reforms, includes both aggressive proposals like court packing and more modest (or politically moderate) reforms such as partisan balance requirements or panel systems. All of these reforms take for granted the tremendous power the Supreme Court wields. What these proposals do is change the partisan or ideological character of the individuals who wield it. The second type, which we call disempowering reforms, include things like jurisdiction stripping and a supermajority requirement for judicial review. These reforms take power away from the Court, redirecting it to the political branches instead. As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject. More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena, which for progressives is where they have to occur now—and should occur—if they take place anywhere.
Keywords: judicial review, jurisdiction stripping, court packing, supermajority rule, democracy
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