With the confirmation of Brett Kavanaugh to the Supreme Court, Republicans have succeeded in a decades-long effort to capture total control of the judicial branch. While they will surely celebrate this victory, the real loser in this partisan battle is not the other side — it’s the Supreme Court. And without radical reforms to save its legitimacy, the Court may never recover from its transformation into a nakedly partisan institution.
After more than 200 years, the Supreme Court still plays a crucial role in our constitutional democracy. It offers a check on the political process, and it holds Americans to our deepest commitments by upholding society’s laws. Indeed, with the Court as the highest arbiter of legal disputes in our country, the public’s trust that it isn’t just playing out partisan politics is inextricable from public confidence in the rule of law itself.
The Court has never been completely disconnected from politics, but the past several decades represent a dangerous swing in a deeply partisan direction. The increased polarization in society, the development of alternative schools of legal interpretation that line up with political leanings, and increased interest-group attention to the Supreme Court nomination process have combined to create a system in which the Court has become a political football.
The years-long process of tit-for-tat escalation by each side culminated in 2016, when Senate Majority Leader Mitch McConnell and his Republican colleagues blocked President Barack Obama’s nominee, Judge Merrick Garland, from even receiving a hearing solely because they wanted to hold open the seat for a potential Republican appointee — a gambit that paid off with the successful nomination of Neil Gorsuch.
But the crisis truly arrived this summer when Kavanaugh was nominated to replace Justice Anthony Kennedy — likely the last justice to frequently vote contrary to what his party affiliation might suggest in some high-profile cases. With his replacement by a more predictable ideological justice, the notion of the Court as an institution above the political fray seemed very much in jeopardy.
And the past few weeks made the situation even worse. Sexual assault allegations, toxic hearings, shocking statements, and shameless political maneuvers over the final days of the confirmation battle led to one of the closest votes ever for a Supreme Court nominee. The debate over Kavanaugh sparked passionate conversations all across the country, took center stage in political campaigns from North Dakota to Maine and generated outrage among senators on both sides of the aisle.
Now President Trump’s two nominations guarantee a solidly conservative Court that we should expect to reliably decide cases — especially hot-button cases — along party lines. This will make it very difficult for many to see the Supreme Court as anything but a set of political actors making partisan judgments, to a degree that is without precedent in American history.
A Court that lacks widespread, bipartisan confidence faces grave risks. One can imagine the firestorm that might result if, say, the Court struck down by a 5-4 margin along party lines a Democratic president’s signature legislative accomplishment. The political branches might feel pressure to ignore the Court’s judgment, which would provoke an unprecedented constitutional crisis. Even if that did not come to pass, it’s likely the confrontation between the branches would significantly weaken the Court.
Other possibilities seem even worse. Anticipating the possibility that the new conservative majority would block progressive reforms, Democrats are warming to the idea of court-packing. Even if justified, such moves will only provoke further partisan escalation that will leave the Court’s image, and the rule of law, badly damaged.
Can this coming crisis be averted? Can the Supreme Court be saved from this fate? We think so. But preserving the Court’s legitimacy as an institution above politics will require a complete reenvisioning of how the Court works and how the justices are chosen. To save what is good about the Court, we must radically change the Court.
The Supreme Court panel solution
Successful reform could take many shapes. To advance the discussion, we’ll propose two ideas here. The first is changing the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court “panel” would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.
This approach would effectively eliminate the high stakes of Supreme Court appointments, thereby taking the Court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of each court decision. No single judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next panel — arriving as soon as two weeks later — might have a different composition and take a different tack.
Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices could not pick cases with a partisan agenda in mind; another slate of justices would hear the cases they select.
Activist lawyers would also not be able to game the system, bringing legal arguments and cases based on predictions of which way the Court is likely to decide. In the run of cases, the Court’s decisions would likely be far more deferential to the democratic process and far more tightly linked to precedent. That would be especially true if the new system were combined with a rule requiring supermajority votes to strike down federal statutes on constitutional grounds.
The balanced court solution
We call our second approach the balanced court. On this proposal, the Supreme Court would have 15 justices. Ten justices — five Republican and five Democratic — would be chosen through a political process much like our current system, and thus would be expected to vote in line with their party affiliation. The key to the proposal is that these politically appointed justices would need to unanimously pick five additional justices, drawn from the courts of appeals, to sit with them for a year. To ensure that the justices come to consensus, the Court would need to agree on all five additional justices or else it would be deemed not to have a quorum, and thus unable to hear cases.
In theory, the system would create incentives for the politically appointed justices to select judges who were universally respected as good lawyers and honest brokers — not devoted partisans. The resulting Court would still have a number of justices whose votes in the most controversial cases would match their political affiliation. But it would also, we hope, include some judges whose votes might be more unpredictable. Under today’s highly politicized selection process, presidents are unlikely to select independent-minded moderates.
These reforms raise some practical and constitutional questions, to be sure. But they are better starting points than many others on the table. Some commentators, for example, have proposed that Supreme Court justices serve an 18-year term instead of a lifetime term. Each president would get two appointments, and appointments would be predictable, removing the pressure to stack the Court with younger and younger justices. While this is a well-intentioned proposal, it is unlikely to depoliticize the Court. If anything, it will make things worse.
First, it guarantees that the Supreme Court will be a campaign issue in every single presidential election because each president would get to shape the Court with two nominees. During the appointment process, movement activists on both sides would still jockey to make sure only the purest ideologues would be appointed. And once on the bench, the justices themselves might actually become more political: A term-limited justice might see the Court as the perfect jumping-off point for a presidential run, decide cases in hopes of retiring into a lucrative lobbying gig, or play to the public to secure a future on Fox News or MSNBC.
Our proposals, by contrast, turn down the temperature of the Supreme Court nomination process and stand a chance of creating a Court that doesn’t always vote along party lines. To be sure, even under our proposals, there would still be politics related to the appointment of federal court of appeals judges. But our suggestions would guarantee more ideological, methodological, and experiential diversity from the Supreme Court. Combined with short terms of service, this diversity will make it harder for any willful judge to impose their agenda on the country.
Whether or not policymakers adopt our proposals, it is imperative that they make some kind of reform. Doing nothing is not a viable option. The Court will be gravely damaged by inevitable clashes between the conservative majority and progressive politicians once Democrats regain power. But more aggressive, nakedly political reforms like court-packing, as attractive as they might seem in the short term, are unlikely to be stable. Saving the Court by transforming the Court is our best hope.
Daniel Epps is an associate professor of law at Washington University in St. Louis, the co-host of the Supreme Court podcast First Mondays, and a former law clerk to Justice Anthony Kennedy.
Ganesh Sitaraman is a professor of law at Vanderbilt University and the author of The Crisis of the Middle-Class Constitution.
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