Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Cal. L. Rev. 1703 (2021).
Abstract: Progressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and academic left following the 2008 financial crisis and the hotly contested appointments of Justices Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the successful implementation of ambitious legislation. Amy Coney Barrett’s confirmation to take Justice Ruth Bader Ginsburg’s seat after her death in fall 2020 brought these once-marginal concerns to the forefront of American political debate, prompting a promise from now-President Joseph Biden, on the eve of his election, to form a national commission for court reform. Despite this once-in-a-lifetime energy around the idea of court reform, the popular and academic discussion of how to reform the Supreme Court has been unduly constrained. Even if the commission proves to be a ploy to postpone reform, it is crucial to clarify the debate around possible ends and means of reform, for the debate is unlikely to die out. This is the case with regard to the mechanism and the purpose of reform alike. On the left, historical memory has limited debate almost entirely to “court-packing.” Meanwhile, the center has occupied itself with how to restore the Supreme Court’s legitimacy by rescuing the institution from its regrettable slide into partisanship. And now, as the Court appears to moderate itself in an effort to preempt legislative reform of the institution, the concern is that progressives will drop their demands for change, satisfied with a few modest judicial concessions. This Article aims to keep the discussion of court reform alive for more propitious circumstances and, just as importantly, to significantly expand its bounds. It does so, first, by urging progressives to reject the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme. Second, the Article introduces a distinction between two fundamentally different mechanisms of reform. The first type of reform, which we call personnel reforms, includes both aggressive proposals like court-packing and more modest (or politically moderate) reforms such as partisan balance requirements or panel systems. All of these reforms take for granted the tremendous power the Supreme Court wields. What these proposals do is change the partisan or ideological character of the individuals who wield it. The second type of reform, which we call disempowering reforms, includes proposals like jurisdiction stripping and a supermajority requirement for judicial review. These reforms take power away from the Court and redirect it to the political branches instead. As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject. More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena. For progressives, this is where such reforms have to occur now—and should occur if they take place anywhere.