The Context-Specific Case Against Supreme Court Reform

Andrew Coan

If the Supreme Court is likely to make very conservative decisions for the next two to three decades, that might persuade liberals and progressives to embrace Court reform, but it will naturally have the opposite effect on most conservatives. Even if conservatives are normatively wrong, because conservatism is normatively wrong, the fact of their predictable opposition has important implications for the feasibility–and, therefore, the desirability–of Court reform. In other words, the case for such reform is a question of game theory, not decision theory, though probably too complex to be helpfully captured in any formal model.

Most liberal and progressive arguments for Court reform proceed in two simple steps. First, they imagine a world identical to the status quo save for one difference—a less powerful or differently composed Supreme Court. Second, they compare that hypothetical world to the status quo and find it superior relative to some normative baseline.  This seems straightforward enough. But it overlooks several important factors: how we get from the status quo to the hypothetical world envisioned by reformers; the strong possibility of failure and backlash; and the dynamic effects that even successful reforms would have on the U.S. political system as a whole during a time of significant instability and polarization.

None of these factors constitutes a decisive reason to reject or abandon Court reform. But they merit at least as much consideration as the current and future ideological predispositions of the Supreme Court. Reformers and their interlocutors should be asking four broad questions: What is the probability of enacting serious Court reform? What are the risks and costs of pushing for reform unsuccessfully? What are the risks and costs of pushing it successfully? And what virtues of the present system, if any, would successful reform sacrifice?

Unfortunately for the Court’s critics, the probability of successful reform is likely to be highest when it is least necessary and lowest when it is most necessary. Indeed, the only situation in which that probability is substantially above zero is one in which liberals and progressives enjoy strong and unified control of Congress and the presidency. These conditions seem quite unlikely to obtain in the near future. But if and when they do, liberals and progressives will have many other means for advancing their preferred policies against an aggressively conservative Supreme Court. At that point, Court reform might be almost superfluous—or at least much less important.

Until then, any push for reform is almost certain to fail. Political capital, legislative time, and public attention are all scarce resources, so this failure would come at some difficult to quantify opportunity cost to other priorities–the harder the push for reform, the more significant the costs. A serious push for reform might also have substantial political costs for liberals and progressives, even when the public is unsympathetic to the Supreme Court ideologically. The current polling on this question is subject to varying interpretations and will inevitably change over time. But Franklin Roosevelt’s court-packing bill illustrates the potential for political disaster even under much more propitious circumstances than any Democratic president is likely to enjoy in the foreseeable future. 

However Court reform plays out with the public generally, conservatives seem certain to view any serious effort of this kind as an attempt to rig the basic rules of the constitutional game in favor of liberals and progressives. Coming just at the moment when conservatives have gained firm control of the Court after decades of single-minded effort, this would constitute a provocation of major proportions. At the very least, it seems likely to fuel an already thriving conservative narrative that liberals and progressives are ready and willing to overthrow the Constitution to achieve their aims (which unsurprisingly provokes a stronger reaction on the right than explicit calls for "termination" of the Constitution by a certain former president).  Given the intense polarization of the country and the growing threat—and existing reality—of political violence, this prospect ought not to be taken lightly. If Court reform is unsuccessful, there will be precious few, if any, benefits to justify these risks.

A successful push for Court reform would carry many of the same risks. Indeed, the risks might be even greater, since the provocation of reform would be real rather than hypothetical. On the other hand, successful reform would also generate real benefits from a liberal and progressive perspective. Those benefits would be different with different types of reform, but they might be profound, potentially including the reversal of Dobbs v. Jackson Women's Health Organization; the invalidation of partisan gerrymandering; the elimination of the nondelegation doctrine as a threat to the modern administrative state; and much more. These gains, however, seem likely to be short-lived, with conservatives enacting countervailing reforms when they regain power. Such a retaliatory cycle has no clear endpoint. This would not only reduce the benefits of reform to liberals and progressives by shortening their duration. It would also constitute a potentially catastrophic flashpoint for political conflict.

How all these considerations balance out is an extremely difficult, almost imponderable, question. The most persuasive argument for significant Court reform is that other institutions—or a differently constituted Court—would make better judgments on the major policy questions implicated by constitutional law at this particular moment in American history. But conservatives should be expected to oppose Court reform at least as aggressively as liberals and progressives support it. Indeed, from a conservative perspective, such opposition is entirely justified. From a liberal and progressive perspective, that opposition may or may not be justified, but it is nevertheless an important reality that affects both the feasibility and the normative case for Court reform.

For a fuller discussion of these issues, see my new draft essay, "What Is the Matter with Dobbs?"