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Sunday, May 27, 2018

Time to Reconceive the Supreme Court

If Justice Anthony Kennedy decides to retire as rumored, we can expect another pitched battle over a nomination to the Supreme Court--the ideological leaning of the Court has a huge impact on so many important constitutional and regulatory issues.

But why allow a conservative or liberal majority to dominate judicial decision-making when both perspectives should inform judicial reasoning? It’s time to learn from other countries that strive for ideological balance on their highest courts. In a forthcoming article (draft available here), I discuss three models for ideological balance on the Supreme Court that also could be extended to the lower courts.

We could seek a Court made up of Justices each of whom is politically moderate, as is typical for the European constitutional courts. That could be achieved by ensuring that all nominees secure the support of both Democratic and Republican elected officials.

Alternatively, we could seek a Court that has an overall ideological balance between conservative and liberal Justices. There could be an even number of Justices, with half reserved for Democratic nominees and half for Republican nominees. With this approach, we would make permanent the balance that existed between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch, with its four-four split between conservative and liberal Justices. Delaware and New Jersey do something similar. Each political party gets at least two out of the five state supreme court seats in Delaware and at least three out of seven in New Jersey.

A third approach would be to seek ideologically balanced decisions rather than ideologically balanced Justices or an ideologically balanced Court. For example, we could require the Court to issue decisions that are supported by a supermajority of Justices. Or to be even more confident of ideological balance, we could require the Court to operate on the basis of consensus. Some constitutional courts in Europe seek ideological balance by requiring both the appointment of moderate Justices and the making of decisions on the basis of consensus.

After considering the advantages and disadvantages of the different models, I suggest an approach that combines an ideologically balanced Court with ideologically balanced decisions. Congress would increase the number of seats on the Supreme Court to twelve and designate four seats for conservative Justices, four for liberal Justices, and four for politically moderate Justices. A Republican nominating committee in the Senate could identify candidates for the conservative seats, a Democratic nominating committee in the Senate could identify candidates for the liberal seats, and the two nominating committees could come together as a bipartisan committee to identify candidates for the moderate seats. Supermajority voting would be included by requiring support for Court decisions by all twelve Justices, or at least a supermajority of ten Justices. With a minimum of ten for the supermajority, at least two Justices would have to come from each of the three ideological blocs. Intermediate courts of appeal could do something similar.

As I discuss in the article, European courts have shown that cases can be decided by consensus rather than majority vote. It just means that Justices or judges have to compromise more.

At the district court level, where a single judge decides, we should ensure the appointment of ideologically moderate judges so neither side of the political spectrum is favored when judges render their decisions. These moderate judges could then feed into the moderate seats on the higher courts making sure that appellate courts always have judges or Justices with trial court experience.

Posted by David Orentlicher on May 27, 2018 at 11:21 AM in Judicial Process | Permalink


Thank you very much for the continued discussion. It's very helpful.

As Claudius points out, one of the virtues of federalism is that we can have different approaches in different states, and people can vote with their feet. But that assumes that people can easily move from state to state. It isn't a simple matter to uproot one's family and move to another state, and in fact, geographic mobility has been declining in the United States. Even if adults could easily vote with their feet, their children cannot.

Many of the other comments question whether we really would get better results via power sharing rather than letting majorities impose their views. I think power sharing works better. Neither side of the philosophical spectrum has a monopoly on the truth. It's better to have the other side there to protect us from one side's bad decisions especially since the downside of a bad decision is greater than the upside of a good decision. Having both sides share in decision-making is the political analogue to diversifying one's investments. It's not good to put all of one's dollars into one stock, nor is it good to rely on one political perspective.

These of course are utilitarian arguments. As I've indicated, I think power sharing gives better results. But it's not just a matter of measuring outcomes. Very importantly, power sharing also does a much better job of providing representation to the public. Majority rule ignores the preferences of the nearly half of the public that takes the minority view. If we believe in representative democracy, then we need to provide meaningful representation to as many people as possible.

John is correct that it would be better if we could lower the stakes of judicial nominations. I've discussed the problems with a winner-take-all system, and the problems are exacerbated as the stakes get higher. "The Winner-Take-All Society" by Cook and Frank does a great job exploring the problems with high stakes, winner-take-all competitions. Term limits should lower the stakes, and that would be good. But I wonder how much. Consider in this regard the major battles when state supreme court justices stand for elections to fixed terms.

Posted by: David Orentlicher | May 30, 2018 12:03:45 AM

The President nominates and the Senate confirms by a 51-49 vote. That doesn't produce ideologically neutral outcomes, which few or none of the stakeholders actually want anyway.

Term limits and regular replacement of Article III judges is the only constitutional fix likely to lower the stakes for the parties and reduce pressure from the elected branches on the Court. No one will ever agree on what a satisfactorily moderate judge should be, but most of us can agree on the calendar.

Posted by: John | May 29, 2018 12:31:32 PM

How do we know that the system isn't already producing compromises?

The democrats got abortion, gay marriage, affirmative action, the exclusionary rule, separation of church and state, and obamacare.

Republicans got guns, capitalism, homeschooling, freedom of (hate) speech, and Citizens United.

Posted by: political market already produces compromises | May 29, 2018 6:22:37 AM

What's a good compromise on the death penalty?
Only have it for people over 18? Only have it for murder? Only have it for people who've been found guilty by DNA evidence? Only have it for people who've been on death row for at least 20 years?

Or would you not compromise if you could ban the death penalty in all cases? If it was banned, would you be willing to bring it back in some cases if you could have a more absolute right to an abortion?

Which rights are you willing to compromise on and which rights must be absolute?

Posted by: Walking Dead | May 29, 2018 5:48:30 AM

At what level do we want to compromise at?

Do we want to compromise on how long the waiting period for an abortion should be? (you day 0 days, i say 2, we compromise at 1)

Or compromise on abortion-regulations? (I want a waiting period, you want a parental-consent requirement, so we'll compromise and have a short waiting period on both abortions and guns)

Or we compromise on rights? (you want an absolute right to an abortion, i want an absolute right to own guns, so we have both rather than neither)

And let's say we decide to compromise and have waiting periods on guns and abortions, but you don't enforce the waiting period on abortions and i don't enforce the waiting period on guns. Have either of us really won? or should we just admit that you aren't going to have any abortion-regulations and i'm not going to have any gun-regulations?

Posted by: Ayn Ran St. Paul | May 29, 2018 5:27:05 AM

Let's say we decide to compromise and have the same laws regarding abortion in every state. All the states agree to legalize first-term abortion and outlaw third-term abortion. So any woman who wants a third-term abortion has to get a passport and go to Canada.
Is this really better than allowing California to legalize third-term abortions, even if it means South Dakota outlaws first-term abortion?
Is the poor woman who has to fly from Texas to Ontario to get a third-term abortion really being treated with the dignity and respect of substantive due-process?

Posted by: Augustus Masidonius | May 29, 2018 3:59:31 AM

We could also just lets states make their own laws in the same way countries can make their own laws in Europe. Currently, in America, every state has to have the same laws, like in China.
But instead, we could allow California to write its own laws regarding things like voting, abortion, and guns--just like Britain can have different abortion and gun laws than Sweden or Poland.
Instead of making compromises in human rights, like in China, we could allow each state to reflect the majority's will, like in Europe.
Since Europe has a better human rights record than China (ignoring Nazi Germany), perhaps allowing each state to be true to themselves--like each European country can be true to themselves--would create more liberty for each citizen.
Californians don't consider bearing arms a liberty, but they do consider having an abortion a liberty. So allow them to be free by their own standards.

Posted by: Claudius Jeffersonius | May 29, 2018 3:41:27 AM

One addendum to my post today. In my proposal for a bipartisan executive, I don't reserve the two slots for a Democrat and Republican. The top two vote-getters would become co-presidents, and they would share the executive power as equals. That would make third party or independent candidates much more viable. Someone who likes a third party candidate (e.g., Ralph Nader in 2000) can vote their preference without having to worry that all they'll do is doom their second choice. If we had a bipartisan executive in 2000, the Ralph Nader voter could have hoped that Nader would finish second and if not, Al Gore would finish second and still share the presidential power with George Bush.

Posted by: David Orentlicher | May 29, 2018 1:27:48 AM

More very good questions. Thanks very much for engaging. Here are my further thoughts.

On Paul’s question about the two-party system, I care most about a related feature of our political system—its “winner-take-all” nature (related because winner-take-all elections result in two-party systems).

It’s winner-take-all politics that really concern me. When we give all of the presidential power to one side of the political spectrum, or allow one side to gain congressional majorities, we invite highly partisan behavior, and we deny voice to half the public in the policy-making of their government. Currently, Democrats are unrepresented in executive branch decisions; during the Obama Administration, Republicans lacked representation. If we believe in a representative democracy, why deny meaningful representation to half the public? Similarly, when one side enjoys a Supreme Court majority, only half of the public feels that its views are reflected in Court decisions.

I think consensual political theorists such as Arend Lijphart have a better conception of democracy than does our political system. We should try to maximize the size of the majority so as many people as possible are represented.

We could promote broader representation through a system of proportional representation, but you still need other power-sharing rules to ensure broad representation. Plenty of proportional representation countries are governed by majority coalitions that come from one side of the spectrum. And there are downsides to proportional representation systems. So I favor adding power-sharing rules to our current system--a bipartisan executive, filibuster rules in both the House and Senate, and the Supreme Court reform that we're discussing.

So this takes me to my answer to Asher’s concern about legitimacy. What makes the Supreme Court seem illegitimate is the ability of five conservative or liberal Justices to impose their one-sided perspective on a country that brings different perspectives to the table. It doesn't strike me as fake or illegitimate to require that Justices compromise on a middle ground.

And on another concern of Asher’s, there are always compromises to be found. Yes, the Court has to decide whether or not there is a right to bear arms, but it also has to decide the scope of the right, and that’s where the middle ground lies. The NRA’s conception of a right to bear arms is quite different from the Heller Court’s conception of the right to bear arms. Similarly, a right to abortion need not be as limited as in Texas before Roe nor as broad as some might want. As for King v. Burwell, the Justices had to decide whether or not to allow subsidies on federal health insurance exchanges, but that wasn’t the only issue decided by the Court. It also decided whether the Chevron framework applied to its analysis. Every case will present multiple issues, leaving plenty of room for compromise. Justices will accommodate to consensual decision-making just as do members of consensual courts in Europe, and just as game theory would predict they will do.

On Howard's question about requiring consensual or supermajority decision-making on the Court and its effect on decisional independence, I'm not sure about the answer. On one hand, according to Article III, Section 2, of the Constitution, the Supreme Court exercises its appellate jurisdiction “under such regulations as the Congress shall make.” And the Judiciary Act of 1789 includes many regulations for the federal judiciary. So there’s an argument from constitutional text, unless I’m missing something about the Article III, Section 2 power.

On the other hand, we have important separation of powers concerns. In particular, if Congress can require a supermajority vote instead of a simple majority, it can better insulate its actions from judicial review. There is a response to this separation of powers argument. One could argue that constitutional challenges should have to persuade more than a mere majority of Justices. As the Supreme Court regularly observes, legislation passed by Congress carries a strong presumption of constitutionality.

It would be simpler if the Court would adopt on its own a norm of consensual decision-making.

Posted by: David Orentlicher | May 29, 2018 1:12:26 AM

You say that Justices want to leave their imprint on the law, but surely they want their imprint to reflect their views, not the opposite of their views. So I don't know why Justices in the minority with strongly held views would join the majority and make views that they strongly disagree with national law.

A couple other things on supermajorities. You say Justices would try to reach a middle ground, but some cases are binary, with no middle-ground alternatives, like, say, King v. Burwell. There, members of the minority would be faced with the choice of joining an opinion they appeared to think frivolously wrong, or allowing circuit-splitting chaos in the insurance markets.

Now, it's true that in many cases, Justices laboring under a supermajority requirement would join a majority that isn't a supermajority just to put an end to lower-court disagreement. But at that point, supermajorities are only creating faux legitimacy. It wouldn't really be the case, in King v. Burwell, that 12 of 12 or 10 of 12 Justices sided with the government, and observers of the Court who listened to oral argument or knew much about the Justices wouldn't think so. Rather, Justices on the losing side would only begrudgingly pretend to agree with the majority-preferred outcome for the sake of national uniformity. What good is done in incentivizing them to suppress their dissents? An illusion of an ideologically balanced decision?

Particularly in smaller cases, what good is done? The Court split 5-4 this term on what percentage of a prisoner's judgment in a prisoner's civil suit must pay his attorney's fee -- 25%, or a discretionary percentage capped at 25% (which is also a binary question that doesn't allow for compromise). With a supermajority requirement, the dissenters probably wouldn't bother to write their dissent (in the unanimity model, they probably wouldn't dissent at all, in the 10-Justice supermajority model, probably only two would, if that many) but the decision wouldn't truly be more ideologically balanced; it would be determined by the conservative majority voting as they did in the Court's initial vote (or in your world, a conservative/moderate coalition) and the liberals choosing to prioritize a unitary outcome over their actual views. It also isn't obvious to me, even if you called that ideological balance, why it's important for the Court to reach a decision joined by conservatives, moderates and liberals in such a small case. People also wouldn't think the Court more legitimate for reaching a unanimous outcome, because only prisoner's rights lawyers and statutory interpretation professors care about the case.

While doing no good, the supermajority requirement would submerge disagreement, denying litigants of the valuable information that with a small change in composition, the Court might overrule itself. Because there might be no dissent at all, and wouldn't in the unanimity version of your requirement, future iterations of the Court wouldn't have the benefit of the dissenters' arguments, which are often some of the most powerful forces for overruling in cases where overruling is justified. And the whole thing would be dishonest, in that the public would be mystified, if not entirely successfully, into believing that the case had a clear legal answer that was arrived at on non-ideological grounds, when in fact the case divided the Court down the middle on partisan grounds and was very hard. Perhaps more realistically, people might suspect that the case divided the Court more than the final vote showed, but how much it divided the Court, or why, would be a secret.

It all seems to me like an unmitigatedly awful idea. If you proposed a supermajority rule to strike down a statute, or to invalidate an agency interpretation of one, cf. Vermeule's "Chevron as a Voting Rule," that would be quite another matter, as then you'd have an outcome if a supermajority wasn't reached and Justices would have no reason to conceal their minority views or not vote their views. Requiring ideological balance for certain kinds of decisions might be a good idea. But requiring it for all decisions would only make unbalanced decisions look balanced.

Posted by: Asher Steinberg | May 28, 2018 1:00:38 PM

The one piece that might require an amendment of some sort is the consensus/super-majority requirement. Some commentators (and perhaps the Justices) might read such a statute as interfering with decisional independence, telling the COurt how to decide cases.

Posted by: Howard Wasserman | May 28, 2018 10:00:03 AM

Do you assume and desire a locked-in two-party system?

Posted by: Paul Horwitz | May 28, 2018 8:23:12 AM

Lots of very good comments and questions. I’ll try to respond to all of them.

First, on Biff’s concern about a Democratic bias to my article, I started writing about bipartisan reforms in government in 2010 when Barack Obama was President, and Democrat still held majorities in the House and Senate. I hope readers will take a look at my 2013 book, “Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch, or a follow-up article on the same theme at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2875428.

I didn’t settle on the second model of an ideologically balanced Court that Eric Segall favors for a few reasons. Some Justices change their views over time—the ideological drift phenomenon—so a 4-4 Court could easily become a 5-3 Court. That’s where the third model of balanced decisions comes in. By requiring consensus or a very strong supermajority, Court decisions will have to secure the support of Justices with a range of views even if a liberal Justice turns conservative or a conservative Justice takes a liberal turn.

I also think it’s important to have moderate Justices in addition to conservative or liberal Justices. That provides a broader range of perspectives, and it also makes room for lawyers to aspire to the Supreme Court without having to stake out strongly conservative or liberal positions.

I don’t try to define conservative, liberal, or moderate nominees. As Orin observes, it’s difficult to know what that means. Rather, I link ideology of the appointments to the nominators rather than the nominees. By linking ideology to the elected officials with nominating authority, we can rely on the officials’ self-interest to achieve the desired ideological balance. A Republican nominating committee would be careful to identify conservative candidates, a Democratic nominating committee would be careful to identify liberal candidates, and a bipartisan nominating committee would be careful to identify moderate candidates.

As to Howard’s follow-up question, parties do evolve in their ideologies. But the Democratic and Republican Parties always will diverge in their ideologies—else why would voters care which party holds power—so having the parties share judicial appointments will ensure an ideological range. This also responds to Biff’s concern whether there really are clearly conservative or liberal positions on different issues. If courts have justices or judges with a range of ideologies, and the courts have to operate by consensus, then the odds are quite good that decisions on any particular issue will be informed by a range of perspectives.

On Asher’s concern that a supermajority requirement would result in a Court that deadlocks with some frequency, that is not likely. To be sure, the Court punted on a number of key cases when it had a 4-4 conservative-liberal balance between Justice Scalia’s death and Justice Gorsuch’s appointment. Punting is an attractive option when ideological balance is temporary, as it was then, but punting is not so tempting when the ideological balance is permanent. If the Justices knew that there always would be a fixed ideological balance and a supermajority requirement, they could not delay their rulings in the hope that they would later be able to secure a majority for their views.

In addition to lacking an incentive to punt, Justices on a balanced Court would have a strong incentive to find the middle ground. Supreme Court Justices want to leave their imprint on the law—after spending years, if not decades, maneuvering for a Court appointment and having reached the pinnacle of the judiciary, they would be driven by their desire to leave an important judicial legacy. If the Justices spent their years on the Court bogged down in gridlock, they would not be able to issue key decisions that would allow them to make a difference in resolving important legal questions. Accordingly, they would come to accommodations that would allow them to issue meaningful decisions.

On implementation, a constitutional amendment would be needed to ensure the permanence of the reforms that I suggest. But all of them could be accomplished without a constitutional amendment. Congress has the power to change the number of Justices, and the Senate could adopt a practice by which it would approve judicial nominees only if they had been recommended by the Senate’s judicial nominating committees. Like the filibuster, the practice could be perpetuated as long as the Senate majority chose to observe it. Similarly, the Court could adopt a practice of deciding by consensus.

Posted by: David Orentlicher | May 28, 2018 1:00:03 AM

1) I can't help but wonder whether it would be also "time to rethink the Supreme Court" if there were a Democratic president and Democratic Senate.

2) I find it somewhat depressing to read law professors talk about judicial philosophies in so simple a manner as democratic/Republican or liberal/conservative. Is someone who is a stickler for the right to confront one's accuser a liberal or conservative? Is someone who is a stickler for separation of powers and non-delegation liberal or conservative? Does it depend on whether it is in the context of deportation or a criminal defendant?

What about a justice who believes the 14th amendment forbids racial discrimination except for the most extreme cases? Would he be a liberal or conservative? What about a free speech extremist? What if one doubts that the 14th Amendment incorporates all the bill of rights? Liberal on the right to bear arms and conservative on free speech? Or is it liberal on free speech?

3) Would this require a constitutional amendment?

Posted by: Biff | May 27, 2018 6:43:23 PM

Or, to add to Orin's point: What happens when ideological focuses change, moving a justice's "camp" on the Court (think Felix Frankfurter, a New Deal liberal left behind when the liberal focus shifted to judicially protected civil rights and civil liberties).

Posted by: Howard Wasserman | May 27, 2018 3:09:28 PM

Achieving "ideological balance" assumes a balance between two known ideologies. My apologies for not reading the paper first, but can you say more about how you define the two ideologies? Relatedly, how do you define a "moderate"? I would think the ideologies of parties, and the meaning of terms like "moderate," are always contested and subject to change. How do you craft a constitutional structure around contested and changing standards?

Posted by: Orin Kerr | May 27, 2018 2:04:05 PM

Excellent post . But I am afraid , that the direction or solutions made here , wouldn't be sufficient. And why ? well :

The respectable author of the post , tries simply , to confuse the linkage between the rulings and the source ( the political stance of judges ) . But , scholars , shall always be smart enough , to point or re – point the linkage , and suggest for example :

That indeed , 4 moderate judges , have ruled so , thanks or due to their mainstream stance ,while , no wonder that the 4 conservatives have ruled otherwise , due or thanks also to their political stance .

Finally, the analysis of the scholars , shall " infiltrate " the public opinion , and here we are again with " zero sum game " . So , what can be done ( if at all ) :

Beyond the idea of professional nominations ( by judges only, or , professional committee ) one needs to notice :

Since in the US , there is severe divergence , between the federal constitution , and states constitutions , and among states anyway , the issue has to do rather with divergence in constitutional perception , for example :

In some states , there is capital punishment or death penalty , not in others . In some states , same sex marriages are legitimate , not in others . The same concerning abortion . Treatment of immigrants , and more .

Once such divergence would get even or fixed , and suggest more coherence in constitutional principles all over the nation , then , you have better chance , to really confuse the linkage between the political stance of the judge , and his rulings .
But surly , it is not so simple , although absolutely essential for the " public health " .


Posted by: El roam | May 27, 2018 1:43:56 PM

David: In your paper, do you discuss Eric Segall's proposal for an eight-Justice Court with party-designated seats and how is your proposal superior?

Posted by: Howard Wasserman | May 27, 2018 12:28:09 PM

Does the supermajority requirement apply to statutory cases? So that, if a statute (or a provision of the Constitution, like the Second Amendment or Recess Appointments Clause) is genuinely ambiguous and splits the Court down the middle, as it splits ordinary readers down the middle, multiple Justices have to change their minds about the statute for no good reason just to reach a decision? Wouldn't this just lead to a lot of affirmances for lack of a supermajority and a loss of national uniformity on hard legal questions?

Posted by: Asher Steinberg | May 27, 2018 11:52:38 AM

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