Balkinization: The Context-Specific Case for Supreme Court Reform

The Context-Specific Case for Supreme Court Reform

Andrew Coan

In a previous post, I argued that responsible constitutional decision-making unavoidably involves moral judgment. If that is the case, why do we entrust that power to an unelected Supreme Court? No one has yet offered a more compelling—or more suitably tentative and qualified—answer to this perennial question than Thomas Grey:

We should not see federal judges as priests, but as officials given more job security than other civil servants so that they can decide disputes fairly, taking account of a mass of institutionalized rules and precedents. The case for granting them the extra degree of political power they exercise through judicial review rests on nothing more grand than a supposed institutional capacity and professional tendency to view current problems in a temporal perspective slightly broader than the one that runs from today to the next election—an eternally shaky case whose persuasiveness turns, for each generation, on how well the judges’ decisions work out.

If Grey is right, the case for serious reform of the Supreme Court in response to Dobbs v. Jackson Women’s Health Organization and other recent decisions must be both practical and context-specific. The question is not whether some idealized concept of judicial review is justified according to eternal principles of political morality. It is whether the United States circa 2023, and for the reasonably foreseeable future, can expect to achieve better results by curtailing the power or changing the composition of the Supreme Court. In asking this question, there is no good reason to abstract away or otherwise disregard salient facts like the ideological and partisan balance on the current Court or the likelihood that this balance will persist for decades, barring some intervening cataclysm.

Sure, liberals and progressives might regain control of the Court in twenty or thirty years. But in the meantime, the current majority will have done untold harm. The country will also be a profoundly different place, in ways that make it extremely difficult to assess the value of liberal and progressive control of the Court two or three decades hence. If liberals and progressives are in a position to retake the Court then, perhaps they will also possess sufficient electoral power to achieve most or all of their essential aims through the political process. Or, more darkly, perhaps the Court’s current conservative majority will have already conspired with an authoritarian Republican Party to entrench conservatives in power on a quasi-permanent basis.

In short, the distant future is unknowable. But the present and the more immediate future we can predict with reasonable confidence. From a liberal and progressive perspective, the Supreme Court seems almost certain to make the country worse over this time horizon, sticking by the terrible precedents it has already created—notably including Dobbs—and rendering many other harmful decisions. On Grey’s view, this is a perfectly defensible argument for serious, perhaps even radical, reform of the Supreme Court.

That argument might appear unprincipled. But judicial review is not an end in itself. It is an instrument for promoting social welfare, a good society, human flourishing, social justice–take your pick. To paraphrase America’s original skeptic of judicial review: If the Supreme Court has become destructive of those ends, it is perfectly appropriate for the people alter or to abolish it, and to institute a new system, laying its foundation on such principles and organizing its powers in such form, as shall seem most likely to effect their safety and happiness.

I elaborate on these points in a new draft essay, What Is the Matter with Dobbs? In a future post, I will explore the formidable, perhaps insuperable, difficulties that call into question the wisdom of serious Court reform.

Posted 8:00 AM by Andrew Coan [link]