In September, well before last week’s leak of an early draft of an opinion that would overturn the Supreme Court’s landmark 1973 opinion in Roe v. Wade, public approval of the court was already at its lowest on record. Now that the Supreme Court’s reputation has deteriorated even further, think tanks, journalists, and members of Congress are debating how to reform the high court to temper its ideological behavior and preserve what remains of its legitimacy. Some have suggested judicial term limits, which would likely require the improbable step of a constitutional amendment.
Another idea — endorsed by my former boss Senator Elizabeth Warren — is to expand the court by increasing the number of its justices from nine to 13. This reform can undoubtedly be achieved without a constitutional amendment, and it would give Democrats the opportunity to respond proportionately to the arguably illegitimate tactics deployed by Republicans to seat Justices Neil Gorsuch and Amy Coney Barrett. David E. Pozen of Columbia Law School has lauded this expansion as a form of constitutional hardball to stop further hardball — a step meant to end our worsening spiral of politicization.
But such a steady state is not guaranteed to follow. One could just as easily imagine a tit for tat wherein one party, upon regaining control of Congress and the White House, adds just enough justices to the court to reclaim the majority. This would likely result in the court’s regularly overturning the precedents forged by the previously installed majority, which would have dramatic negative consequences for the stability of the law itself. Imagine abortion clinics trying to operate in such an environment.
Consider, then, another avenue for reform: Forget about a dedicated, permanent set of nine justices. Instead, imagine that when a petition for appeal is filed with the Supreme Court, nine judges from the federal Courts of Appeals are randomly drawn to decide whether the petition should be granted. Then, for every case the Supreme Court has accepted, another nine judges are randomly drawn from the Courts of Appeals to hear oral arguments and issue a ruling. (The current justices, like the current judges on the appeals circuit, would sit on Court of Appeals panels when not randomly drawn to decide a given Supreme Court case.)
This proposal likely would not require a constitutional amendment. Indeed, some scholars have already worked out the legal mechanics so as to minimize any constitutional challenges. And a report recently authored by the bipartisan Presidential Commission on the Supreme Court has acknowledged the potential benefits of what it called a “rotation proposal.”
Moreover, there is historical precedent for judges to work in temporary delegations. Under the practice known as “riding circuit,” Supreme Court justices used to travel the country and be designated to sit on federal courts at the circuit level. Today, cases at the Courts of Appeals are heard by rotating panels of judges who aren’t known to the parties in advance.
The critical advantage of randomly assigning judges to consider cases at the Supreme Court is that it would dramatically reduce the incentive to manipulate the court to enact a policy agenda. Under the current regime, litigators and judges on some Courts of Appeals refrain from advancing certain cases when the makeup of the Supreme Court is disadvantageous and aggressively push cases when they can count which five of the nine justices will vote their way. Consider, for example, the heavy push for forced arbitration and religious freedom cases filed and won in the last few years, in an effort to take advantage of a judiciary friendly to those causes.
Under a lottery system, however, opportunities to game the court would fall away. Litigators filing petitions before the high court would not know which judges would decide those petitions, and judges deciding whether or not to place a given case on the court’s docket wouldn’t know which judges would ultimately decide its merits. (Judges who originally heard a case at the appellate level would not necessarily have to be excluded from the pool of judges from which the Supreme Court panel was drawn.)
There are other potential benefits to a lottery system, too. For one, the much larger pool of circuit court judges might be more difficult for one president to manipulate. Presidents Trump and Biden (so far) have both reshaped a larger percentage of the Supreme Court than of the circuit or district courts. For another, a lottery system could temper judicial confirmation hearings. As the recent confirmation of Justice Ketanji Brown Jackson made clear, the hyperfocus on the confirmation of justices inspires political grandstanding. But the sheer number of circuit confirmations — there are currently nearly 200 judges at the circuit level — would produce fireworks only when senators have legitimate concerns about a nominee. For a third, litigators would be required to submit their legal briefs to the Supreme Court before knowing which judges would decide their case. This veil of ignorance would force litigators to make their strongest general arguments, as they do at the Court of Appeals, rather than try to win over specific justices they anticipate will be the decisive votes.
The Constitution says very little about the structure of the Supreme Court: There must be a Supreme Court; the judges “both of the supreme and inferior Courts” must have lifetime tenure; and when the president is tried for impeachment, the Chief Justice must preside. That’s it.
Because of that last requirement, under a lottery system, there would still be a Chief Justice who, like any of the other judges, could be randomly assigned a case before the Supreme Court. In addition, that justice would preside over any presidential impeachment trials and would continue handling the administrative duties currently associated with the role. But, whereas today the Chief Justice is responsible for overseeing the opinion-writing process, under the lottery system that responsibility would instead go to the most senior of the nine judges randomly pulled. This is already how Court of Appeals panels operate today.
Regardless of the details, one thing is certain: Those of us who want a court that is restrained, faithful to the Constitution, and respectful of the will of the people must put forward bold, creative reform ideas — and we must enact the best of them to rein in the unelected branch of our federal government that is running amok.
Brendan Schneiderman, a recent graduate of Harvard Law School, is an attorney in Washington, D.C.