The Supreme Court being in the (bad) news, someone posted a link to a forthcoming article in the California Law Review. The article, “Democratizing the Supreme Court”, is 71 pages long. Below are 2 1/2 pages of excerpts. I think they’re interesting.
Before getting to that, however, I want to point out that the effort to defang the Electoral College is further along than most people realize. This is good news:
The National Popular Vote Interstate Compact will guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. The Compact is a state-based approach that preserves the Electoral College, state control of elections, and the power of the states to control how the President is elected.
The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes. The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA).
Ok, back to the Supreme Court:
Supreme Court reform is on the progressive agenda, but the debate about how to conceptualize and therefore to pursue it has barely begun. . . . Though only in early stages, our era’s discussion now risks brevity and error. Historical memories have favored “court-packing” or personnel expansion of the institution as practically the only imaginable reform. . . .
The basic purpose of this article is to counteract this risk. It reconsiders the criteria of reform, not with the assumption that the goal is re-legitimating the Supreme Court, but with the necessity of progressive transformation of the country in mind. . . .
This article [compares and contrasts] the widest range of imaginable statutory reforms under our current constitutional regime. These include balancing the Supreme Court between parties, turning to expert or merit selection, using lotteries to compose decision-making panels from larger pools, passing jurisdiction stripping statutes (potentially ones introducing alternative executive branch adjudication), institutionalizing higher voting thresholds for judicial decisions, or opening the possibility of their legislative override . . .
The last discussion of Supreme Court reform, climaxing in the emergency of the 1930s, is a cautionary tale more than an inspiring precedent. Formally, Franklin Roosevelt failed in court reform, even while leaving a memory of his own solution—court packing—as if it were the most viable choice now. . . . The lesson of the last reform era for our own is that we must democratize the Supreme Court . . .
The consequence for the discussion of Supreme Court alternatives is straightforward. It must begin with how to diminish the institution’s power in favor of popular majorities. Asking “how to save the Supreme Court” is asking the wrong question. For saving it is not a desirable goal; getting it out of the way of progressive reform is. The New Deal court reform had the chance to counteract the assumption that judicial power is hardwired out of necessity or in principle into American politics, only to see it canonized instead. The entire point of Supreme Court reform ought to be to avoid repeating that mistake . . .
The Supreme Court is not a separate problem from the crisis and deadlock of the American political system, in view of the fact of a rising [liberal] majority abetted by demographic and generational change and more and more open to national renovation. It is part of crisis and deadlock, to be reevaluated rather than restored in its basic functions if progressive reform is to occur. . . .
Progressive activists and scholars have proposed a host of reforms in recent years, from court packing to jurisdiction stripping to term limits. [These] various proposals can . . . be sorted into one of two types. . . . The first type, which we call “personnel” reforms, propose to alter the Supreme Court’s partisan or ideological composition. . . . [They] try to improve our situation by adjusting the Supreme Court’s membership . . . [Since they only deal with] who sits on the bench, personnel reforms take for granted that the Supreme Court wields tremendous policymaking authority. The goal of such reforms is thus, for progressives, to wrest that authority away from conservatives.
By contrast, the second type of proposal, what we call “disempowering” reforms, take aim at what the Supreme Court is permitted to do. Reforms like jurisdiction stripping or supermajority voting rules for judicial review, for example, limit the Supreme Court’s ability to make policy to varying degrees. In so doing, disempowering reforms effectively reassign power away from the judiciary and to the political branches. Unlike their membership analogues, these ‘small-d’ democratic reforms have no obvious ideological valence . . . Partisan advantage would be tied directly—and evenly—to electoral outcomes. Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections. . . .
Many of the personnel reforms . . . try to restore or preserve the Supreme Court’s perceived role as an apolitical decision maker. . . . Immediately, however, this shift from non-ideological to ideological moderation or centrism should set off alarms. Insofar as the Court is supposed to be a neutral arbiter of the law, reforms that conduce to ideological moderation are fundamentally of the wrong type. The neutral arbiter ideal is essentially what Chief Justice Roberts invoked with his in/famous judges as “umpires” metaphor. That image of judging, of course, assumes a sharp distinction between politics and law. . . . [But] it makes no sense to insulate judging from politics by imposing moderate or centrist politics as opposed to politics that are far left or far right. . . .
Few if any would argue that the Supreme Court’s legal analysis goes uninfluenced by willfulness or motivated reasoning. Especially in politically significant cases, the consensus among scholars and other legal observers is that the Supreme Court’s decisions are, to the contrary, driven substantially by ideological commitment. . . . To impose a moderate or centrist ideology is not to remove ideology from the equation. Just as those on the far left or the far right are susceptible to motivated reasoning or willfulness, those in the political center have substantive preferences that can lead them astray if those preferences do not align with the law. Put more simply, it is hard to see how merely changing the Court’s ideology would make the Court less ideologically motivated. . . . [I think the idea is that moderate or centrists are less ideological, so having more of them on the court would reduce the effect of ideology on the Court’s decisions.]
The push for democratic legitimacy starts from the observation that much of the Supreme Court’s work is inherently political. Especially in constitutional cases, many of the claims the Court is asked to evaluate are legally underdetermined or, at a minimum, epistemically opaque. As a result, Supreme Court justices inevitably rely upon policy inclinations in deciding what the Constitution requires or permits. The question for small-d democratic reformers, then, is how to reconcile the ideological nature of these determinations with a commitment to democratic self-rule. For proponents of disempowering reforms, the way to address the apparent tension is to redirect decision-making authority away from the democratically unaccountable judiciary and toward the political branches. . . .
Among personnel reforms, court packing is probably the most uncontroversially legal. . . . The number of seats on the Supreme Court has been set since its inception by statute and Congress has adjusted the size of the Court – from six to seven, to nine, to ten, back to nine – numerous times.This longstanding congressional practice couples with relative constitutional textual silence. While Article III assumes the existence of a Supreme Court and Article I, section 3, that there will be a Chief Justice, nothing else in the text seems to bear on how large or small the Court must be. . . . After court packing, the legality of personnel reforms gets murkier. . . .
Disempowering reforms are also contestable, legally speaking. Jurisdiction stripping is perhaps the most aggressive reform and famously raises numerous constitutional questions—questions that become more difficult the more comprehensive the strip. In particular, the Supreme Court has remarked repeatedly that “serious” concerns “would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Such worries apply to specific constitutional issues, let alone to broad categories of claims.
Despite this controversy, stripping courts of jurisdiction, even over constitutional challenges, has strong textual footing. As numerous scholars have observed, Article III’s grant of authority to Congress to “make … Exceptions” to the Supreme Court’s appellate jurisdiction while at the same time placing the existing of “inferior” federal courts entirely within congressional control suggests that Congress enjoys sweeping authority concerning which cases federal courts are permitted to hear. And as to state courts, both the Supremacy Clause and the Necessary and Proper Clause appear to provide Congress substantial discretion there as well. Taken together, Christopher Sprigman argues that these features indicate the Constitution “gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters,” relying in some instances on political rather than judicial checks to enforce constitutional constraints. . . .
Court reform is a debate about both means and ends. The conventional prevailing view is that we should use non-neutral means of reform that correct distortions in membership on the bench in order to achieve the neutral end of an apolitical Supreme Court. In opposition to this view, our argument has favored the neutral means of democratization—which shifts power to whoever wins elections to determine the fate of the country—as the most plausible way to achieve non-neutral ends.
Of course, somebody else than progressives could win those elections, and constitute the political majorities to come. But if right-wing nationalists win, the country is already lost. And if a centrist coalition in either party prevails, they establish the outcome many court reformers hope to achieve through personnel reforms.
But the rightist and centrist outcomes are not the only possibilities. If a progressive coalition wins, it could take advantage of the power reassigned from the Court to allow politics to redeem the country—something that no court, let alone our Supreme Court, will ever do.