Epps, an associate professor at Washington University in St. Louis, and Sitaraman, a professor at Vanderbilt University in my former home town of Nashville, Tenn., have gained wide attention by detailing their two proposals in an article for the Yale Law Journal now being circulated on-line in draft form. Epps and Sitaraman go way beyond the other pending reform proposals, such as adding justices to restore balance on the Court and enacting term politics to de-politicize confirmations. Instead, they open their article with a blunt demand for "a complete rethinking of how the Court works and how the Justices are chosen."
The two professors call their proposals, respectively, the Balanced Court and the Lottery Solution. The first of the proposals borrows the requirement for political balance in appointments to federal regulatory agencies: the Supreme Court, under this proposal, would consist of 10 justices, five from each of the two major political parties, who would then select by unanimous or supermajority vote five more from the pool of federal appellate judges to sit with them two years later for a period of one year.
The Lottery Solution would go one step further by creating the "one Supreme Court" as specified in the Constitution by randomly selecting nine justices from the pool of federal appellate judges to sit for two-week periods. For good measure, the professors pair this proposal with the oft-discussed idea of a supermajority requirement to overturn a federal statute — not by a 6-3 vote as generally proposed in the past but by an even stronger 7-2 vote.
These proposals were among others discussed in an opening plenary session when legal progressives gathered in Washington last week [May 7] for the annual convention of the American Constitution Society (ACS). Attendees were greeted outside the Capital Hilton by earnest ACS members handing out cards with the printed message: "It's Time to Unite Around Supreme Court Reform." The card listed the three narrower reforms: expanding the Court, enacting term limits, and adopting a code of ethics for the justices.
Before considering the various proposals, it is necessary to explain how what is widely described as the Supreme Court's crisis of legitimacy has come to pass. Epps and Sitaraman list several factors, but the most important and chronologically the first is the overt politicization of the Court by a succession of Republican presidents and over time the Republican Party writ large.
For the last half century, five Republican presidents — all except Gerald Ford — have used Supreme Court appointments deliberately to politicize the Court, unsettle precedent, and pursue a partisan conservative agenda. Democratic presidents, Bill Clinton and Barack Obama, have not responded in kind.
To be sure, the four Democratic-appointed justices — Ginsburg, Breyer, Sotomayor, and Kagan — can all be described as liberals or progressives. But all of them with the possible exception of Sotomayor commanded wide support in legal and judicial circles before their appointments as consensus seekers rather than doctrinaire ideologues.
Ginsburg and Breyer won Senate confirmation with 96 and 87 votes respectively, Sotomayor and Kagan each with more than 60. Compare that to the under-60 vote confirmations of Thomas, Alito, Gorsuch, and Kavanaugh. In a fair process, President Obama's blocked nominee Merrick Garland would likely have won confirmation — thus, McConnell's decision to deny him any hearing whatsoever.
Indeed, Supreme Court watchers who do the numbers have shown that none of the four current Democratic justices is as "liberal" as the most "conservative" of the Republican appointees: notably, Rehnquist, Scalia, Thomas, and now Alito. The two Trump appointees, Gorsuch and Kavanaugh, can be expected to be equally conservative after being blessed as Supreme Court nominees by the ultraconservative Federalist Society.
Epps and Sitaraman define the current crisis as "the rise of a Court polarized on party lines." They cite as additional factors the deeply divided political environment and the rise of competing schools of legal thought — think, originalists versus living constitutionalists — with opposing views corresponding to the two major political parties. The combination of these factors, in effect, lead Epps and Sitaraman to despair of any possible reforms other than a complete transformation of the Court as we know it.
Thus, they give no consideration to the kind of nonpartisan merit selection systems adopted in a number of states, including my home state of Tennessee. At the federal level, one reform — outlined here for the first time as far as I know — could be the creation of a nine-member Supreme Court nominating commission, with two members each appointed by the party leaders in the House and the Senate and perhaps a ninth by the president.
The president, under this plan of mine, could nominate as justice only a candidate deemed qualified by a two-thirds supermajority of the commission on the basis of professional qualifications, judicial temperament, and legal views. Epps and Sitaraman, I suppose, would view this idea as ineffective in reducing the now hard-wired politicization of the Supreme Court confirmation process.
The ACS panel produced no consensus around any of the reform proposals. Epps and Sitaraman reject expanding the Court as inviting a tit-for-tat response in the future; they reject term limits as more likely to increase rather than reduce the politicization of the confirmation process. The lack of consensus on the legal left likely dooms any of the reforms, especially if Republicans think they will continue to have the upper hand in these debates. Thus, the message for Democrats and legal progressives is simple and direct: Elections have consequences; the path to Supreme Court reform begins and ends at the ballot box.
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