How to Save the Supreme Court
![handle is hein.journals/ylr129 and id is 156 raw text is: How to Save the Supreme Court
AB5TR ACT. The consequences of Justice Brett Kavanaugh's Supreme Court confirmation are
seismic. Justice Kavanaugh, replacing Justice Anthony Ken nedy, completes a new conservative ma-
jority and represents a stunning Republican victory after decades of increasingly partisan bardles
over control of the Court. The result is a Supreme Court whose Justices are likely to vote along
paty lines miore 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 irpartial justice, the Court's power to settle importait questions
of law will be in serious jeoprdy. Moreover, mmy Democrats are already calling for changes like
court-packing to prevent the new conservativ e 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 he stopped. But saving the Court's legitimacy as an institution above
politics xill require a radical rethinking of how the Courr has operated for more than two centu--
ties. In this Feature, we outline a new framework for Supreme Court reform. Specifcally, we argue
for reforms rhar are plausibly constitutional (and thus implemenrable by statute) and rhat are ca--
pable of creating a stable equilibrium even if initially implemented using hardball tactics. Under
this fraiexork,. we evaluate existing proposals nd offer two o our own: the Supreme Court Lot-
tety and the Balanced Bench. Whether policymakers adopt these precise proposals or nor, our
frasnexvork can guide their much-needed search fit refonn. We can save what is good about the
Court- but only if we are willing to transform the Court.
AUTHORS. Daniel Epps is Associate Professor of Law, Washingron Unversity in Sr Louis.
Ganesh Sitaraman is Chancellor Faculty Fellow, Professor of Law, and Director of the Program in
Law and Government, Vanderbilt Law School. For helpful conersations and comments, we are
grateful to Enwin Chemerinsky, Garrett Epps, kohn Inazu, Pam Karlan, Ron Levin, Mann Levy,
Anne Joseph O'Connell, Nate Persily, Dave Pozen, Richard Primus, Steve Sachs, Ilya Shapiro, Jed
Shugermun, Kate Shaw, David Slanshy, Mar Tushnet and the editors of the Yale Law ou root
to participants in workshops at Stanford Law School, Washingron University School of Law, and
Yale Law School: and to participants in the ACS/SALT Workshop at the 201 AAILS Annual Meet-
iig. We would like to thank Rhys Johnsoin. Wil Pugh, and Allison Walter for helpful research
assistance. The proposals developed here were first advanced in Daniei Epps &Ganesh Sitaraman.
f-low to Sore the Soeme Conrr Vo (Sept. 6, 2,,;; updated Oct. io. 20Th), https://wvw.vox.com
/the-big-idea/2oiS/9/6/17827786/kavanaugh-vote-supremne-cour-packing [hrtps://perina.cc
/5ZM2- LzWK]j.
148](ViewImageLocal?handle=hein.journals/ylr129&div=6&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
How to Save the Supreme Court
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most