The Yale Law Journal

VOLUME
129
2019
NUMBER
1
October 2019
2-307

How to Save the Supreme Court

Constitutional LawFederal Courts

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.

author. Daniel Epps is Associate Professor of Law, Washington University in St. Louis. Ganesh Sitaraman is Chancellor Faculty Fellow, Professor of Law, and Director of the Program in Law and Government, Vanderbilt Law School. For helpful conversations and comments, we are grateful to Erwin Chemerinsky, Garrett Epps, John Inazu, Pam Karlan, Ron Levin, Marin Levy, Anne Joseph O’Connell, Nate Persily, Dave Pozen, Richard Primus, Steve Sachs, Ilya Shapiro, Jed Shugerman, Kate Shaw, David Sklansky, Mark Tushnet, and the editors of the Yale Law Journal; to participants in workshops at Stanford Law School, Washington University School of Law, and Yale Law School; and to participants in the ACS/SALT Workshop at the 2019 AALS Annual Meeting. We would like to thank Rhys Johnson, Will Pugh, and Allison Walter for helpful research assistance. The proposals developed here were first advanced in Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, Vox (Sept. 6, 2018; updated Oct. 10, 2018), https://www.vox.com/the-big-idea/2018/9/6/17827786 /kavanaugh-vote-supreme-court-packing [https://perma.cc/5ZM2-L2WK].