How Do You Solve a Problem Like the Supreme Court?
Over the course of these essays I have made the case that fixing what ails us requires us to focus on two problems: (1) our fragmented, sorted, and polarized citizenry, which has destroyed the mutual trust and legibility necessary to make losing elections feel reversible and survivable; and (2) the erosion of the institutions of law and government that are designed to guarantee reversibility and survivability. To address the first problem, I’ve suggested that we rebuild bonds of social cohesion through shared service and the deliberate creation and expansion of a common mythology.
And when it comes to the second, I’ve suggested that the point of focus should be reforming the Supreme Court. Time to be concrete on what reform could look like. There are some good ideas and less good ideas out there, and I want to share not just what, but also how, I think about some of them. Let me just say that there are a lot of proposals and there is much to say about them. This essay doesn’t canvas all of them or discuss the full implications of any of them; to do either would amount to a dissertation. The point is to identify some of the more common proposals and engage with them seriously but not exhaustively.
The place to start is to ask, what is court reform trying to achieve? It is impossible to assess the merits of any proposal without answering that question first. And there are different views on this question. I’ll give you mine, and they emerge from the framework I have been developing throughout this series. It seems to me that court reform should try to accomplish two related things: (1) restore public trust in the Court; and (2) make the Court less important.
Here’s what I mean. When citizens accept the Court’s rulings, even those they hate, they do so only because they believe it to be a legitimate, non-partisan arbiter. For reasons I have recounted, the public’s faith in the Court as a neutral arbiter has cratered. Polling consistently shows public confidence in the Court at or near historic lows. (It is still better-regarded than Congress, but that’s an extraordinarily low bar.) Any reform agenda that doesn’t take the problem of legitimacy seriously is pointless.
Now the more complicated and contentious goal. The Court has become too powerful in our political system. Exactly how and when this happened is open to debate. But it should strike us all as odd that the idiosyncratic views of nine unelected aristocrats should rule us in virtually every sphere of American life. This critique is often framed as one about the anti-democratic nature of the Court, the famed “countermajoritarian difficulty.” But that’s not actually what I’m focused on. The democratic critique of the Court has its place, but it cuts only one way ideologically and tends to evaporate the moment one’s own side holds the majority. My concern is structural and applies regardless of which side is winning. I’m focused on the incentives the Court’s centrality creates and the way that it exacerbates polarization.
When the Court is the final word on abortion, guns, religion, administrative power, voting rights, and presidential immunity, every political dispute becomes a judicial dispute waiting to happen. Why compromise in Congress or in a state legislature when you can get a bigger, more durable win in court? This logic applies to whichever side expects to win, and it hollows out the political branches in the process. It also incentivizes political capture of the Court itself, because the prize is now enormous. Polarization drives Court politicization, which drives further polarization. We should aim to drive down the stakes of Supreme Court litigation and return more contested questions to the democratic arena. Not only because we are, or want to be, a democracy; but because forcing people to engage with each other forces them to see each other.
I would measure any reform agenda against these two goals.
There is one reform that should require little debate: a binding code of ethics. The Supreme Court is currently the only institution in the federal government that operates without one. Every other federal judge is subject to the Code of Conduct for United States Judges, which establishes rules on conflicts of interest, financial disclosure, recusal, outside activities, and the appearance of impartiality. But for some reason, Supreme Court justices are exempt.
The justices are not even accountable to one another; each justice acts as his or her own ethics board, deciding for him- or herself when to recuse, what to disclose, and what gifts to accept. When the Court finally adopted a code of conduct in late 2023, under intense public pressure, it contained no enforcement mechanism. It was an ethics code that could not be enforced, which is another way of saying it was not an ethics code at all.
This is a catastrophe. The perception of neutrality is the Court’s only source of power. It is the only thing that legitimates the idea that nine unelected lawyers shape the contours of American life. Although ethics rules do not guarantee neutrality, the absence of those rules guarantees the appearance of corruption. Whether the receipt of gifts by the justices or their partisan attachments influenced even a single decision is beside the point. The point is that they fostered doubt and that the justices involved appeared unconcerned by that doubt.
A binding ethics code—mandating detailed and timely financial disclosure, requiring recusal for cases involving parties with whom a justice has a financial relationship, and implementing a real enforcement mechanism (whether through a panel of lower court judges or an inspector chosen by the Court itself)—is almost certainly achievable through ordinary legislation. Congress has the power to regulate the Court’s operations, and this should not require a constitutional amendment.
This is the lowest-hanging fruit of judicial reform, the proposal most obviously necessary and most difficult to argue against in good faith. That it has not already been enacted really makes you wonder.
I have heard one objection that the justices already feel as though they live their lives under a microscope, and this proposal would only magnify that feeling. All I can say is that these are among the most powerful people in the country. Why shouldn’t they be subject to strict scrutiny when it comes to their ethics?
The structural reform with the broadest support is term limits.
The Constitution awards lifetime tenure to Supreme Court justices. This made sense as a means of insulating justices from political pressure in the eighteenth century, when life expectancy was shorter, when the Court’s role was narrower, and when the stakes of any single appointment were correspondingly lower. It makes much less sense now. Justices serve for decades. The average tenure has grown from fifteen years in the nineteenth century to more than twenty-five years today. A single appointment can shape the law for generations. And the Court has become a much more powerful and active institution in the interim. The result is a system driven by actuarial accident: the timing of deaths and retirements determines the Court’s composition, which determines the direction of constitutional law, which determines the rights of more than three hundred million people.
This system creates perverse incentives at every decision point. Presidents select the youngest plausible nominees to maximize tenure. Justices time their retirements strategically, stepping down only when the “right” president is in office. When a vacancy occurs unexpectedly, the political stakes are astronomical, as the Garland and Barrett episodes put in sharp relief. The lottery of death and retirement has become one of the highest-stakes games in American politics. Frankly, it sounds more like a system from the medieval period or a modern-day autocracy than a democratic one.
The most widely proposed reform for this problem is eighteen-year staggered terms. Each president would appoint two justices per four-year term, on a regular schedule. The obvious objection to this proposal is that lifetime tenure is mandated by the constitution. But there is a possible workaround. After their eighteen years of service on the Supreme Court, justices would still retain lifetime tenure; but they would rotate to senior status on a lower court. The Court’s composition would thus change predictably and gradually rather than through the sudden violence of unexpected vacancies. There are potential constitutional objections to this proposal, but it is at the very least plausibly constitutional. And I have to think justices would hesitate to strike down a reform of this sort; it would be a bad look that smacks of self-dealing. (Note that I said they’d hesitate. I didn’t say they wouldn’t do it. 🤷♂️)
Regularized appointments might reduce the stakes of any single appointment, because everyone knows the next one is coming on schedule. Strategic retirement becomes less important, because a justice’s departure does not create a vacancy to be filled at the president’s discretion; it is simply the end of the term. The Court’s composition would, over time, reflect a broader range of appointing presidents rather than the accident of which presidents happened to face vacancies. And because every president would make the same number of appointments, the system would feel fairer, a word that matters enormously for an institution whose legitimacy depends on the perception of fairness. That’s the argument, anyway.
Term limits would also change the confirmation process, or at least the incentives surrounding it. When every appointment feels like a once-in-a-generation event (because it might be), the confirmation battle becomes existential. But if appointments are regularized, occurring on a predictable schedule, the stakes of any single confirmation decline.
I don’t think this reform is likely to be quite as effective as people hope. It might ratchet down the stakes of individual appointments, but it could not possibly depoliticize the process entirely. After all, appointments would remain the spoils of presidential and senate elections. It would also create a new problem: once a justice is rotated from the prestigious and powerful perch they occupy on the Supreme Court, they might prefer to take a far more lucrative job at a law firm over a less powerful and less remunerative seat on a lower court. This could create perverse incentives for a justice to vote in manner most palatable to future employers. There are probably means of addressing this, but the point is that this reform is not likely to accomplish all its advocates hope for, and there are a lot of details to work out.
Do I think this reform is worthwhile? Probably. But I do not think it is quite the panacea that so many others seem to.
The other oft-proposed structural reform is expanding the Court. Specifically, the argument goes that the next time the Democrats have both houses of congress and the presidency, they should add seats to the Court and fill them with justices whose jurisprudence skews liberal rather than conservative. The argument for this reform is straightforward. The current six-three conservative supermajority is the product of hardball tactics: McConnell’s blockade of Garland, Barrett’s rushed confirmation eight days before an election, and a Federalist Society pipeline that has eliminated the ideological surprises that once kept the Court from becoming a partisan mirror. The Court’s current composition reflects the strategic manipulation of the confirmation process by one party. In that sense, adding seats looks like a correction.
But it is also an escalation. And the escalation essentially demands further escalation. Anytime the same party holds the two houses of congress and the presidency, the court will be expanded again. The cycle has no natural stopping point. Each expansion becomes the justification for the next. The Court grows, its composition oscillates with every change in government, and the institution becomes openly and permanently partisan. The Court will become the focal point of every election. That is not healthy. In fact, it is precisely the outcome my framework warns against.
So, should Democrats pursue expansion if given the opportunity? The best I can offer is a principle: expansion should never be pursued as a first resort, and it should never be pursued alone. If it is pursued at all, it must be part of a package of reforms, designed to make future expansion unnecessary, that reduce the stakes of the Court’s composition by depoliticizing the appointment process and returning contested questions to the democratic arena. Expansion without structural reform is a sugar rush: it feels good immediately and makes the underlying condition worse. I lean toward “no” on this proposal.
But there is a different kind of Court expansion, one less often discussed in the political arena, that seems much more appropriate to me, and it gets to the goal of de-centering the Court in modern politics.
One problem with the Constant Court of Nine is that the Nine are predictable. When they are predictably conservative, conservatives will turn political issues into constitutional issues. And when they are predictably liberal, liberals will do the same.
We see this play out in the lower courts. There are federal district court divisions with a single active judge, and the judges there are reliably conservative. Extravagantly conservative. The Amarillo Division of the Northern District of Texas, for example, has only one judge: Matthew Kacsmaryk, a former religious liberty advocate who has become the destination of choice for conservative litigants seeking to challenge federal policies. File a case in Amarillo, and you know who your judge will be. The result is predictable: challenges to the FDA’s approval of the abortion medication mifepristone, challenges to immigration policy, challenges to federal regulations, all channeled to this out-of-the-way court because the results are predictable. There are no comparable single-judge liberal divisions, but rest assured: if there were, liberals would do the same. This is not a question of morals, ethics, or scruples; it is not a question of which party is better or worse. It is simply one structural incentives. When you know you will win in court , you rush to court. When you know you will lose, you try the political process instead.
The Supreme Court, while not quite as reliably and extravagantly conservative as those district courts, is close enough that turning political questions into legal questions is nearly always a good bet for conservatives today. And, again, if the shoe were on the other foot, liberals would do the same.
But what if you could not predict your Nine? What if the Supreme Court had many more members, but on any given case, the Nine were drawn at random? Suddenly, when you cannot predict that your side will win, there is a disincentive to rush to the courts. Political compromise begins to look more palatable, more attractive.
The legal scholars Daniel Epps and Ganesh Sitaraman proposed a version of this idea in the Yale Law Journal. Under their “Supreme Court Lottery,” every federal appeals court judge would be designated an associate justice of the Supreme Court, and panels of nine would be drawn at random to hear cases. With roughly one hundred and eighty circuit judges in the pool, the ideological composition of any given panel would be genuinely unpredictable. Neither side could count on a favorable bench. The incentive to turn every political dispute into a constitutional case would diminish, because the judicial outcome would no longer be foreordained.
To be sure, this creates new challenges. How must one panel of nine treat the precedents established by a prior panel of nine? How would the larger pool of Supreme Court justices be constituted? Through new appointments, through designation of sitting circuit judges, or through some combination? The constitutional scholar Stephen Sachs has objected that even a perfectly fair lottery across a perfectly balanced bench would not guarantee a balanced panel, and that the proposal might “destroy the Court’s legitimacy in order to save it.” These are serious objections.
But they are manageable. The intermediate federal courts already manage them. Every federal circuit court operates with panels drawn from a larger pool, and those panels regularly confront questions about how to treat the precedents of prior panels. The system is not perfect, but it works. The Supreme Court could work the same way.
A predictable Court is a Court that invites political capture. An unpredictable Court is a Court that encourages political compromise. As a general matter, if not in every case, we should prefer the latter.
These are just a few potential reforms. None is a silver bullet. We shouldn’t expect a silver bullet. Incremental reforms in the form of precise and careful interventions are the best we can hope for. And when it comes to the Supreme Court, I think the right interventions are: binding ethics code (low hanging fruit); term limits (though they will not accomplish everything their advocates hope for); and an expanded Court from which panels are drawn by lottery.