I Choose, You Decide: Structural Tools for Supreme Court Legitimation

Executive Summary: The Supreme Court’s legitimacy is under threat. Efforts to either respond to the crisis of legitimacy or to salvage what legitimacy remains are focusing on reforms to the selection, appointment, and tenure of Justices. I propose an additional, complementary change, which does not require constitutional amendment. The selection of cases for the Court’s discretionary docket should be performed by a different group of Justices than those who hear and decide the cases on that docket. The proposal leverages the insight of the “I cut, you choose” procedure for ensuring fair division of heterogeneous resources–only here, it manifests as “I choose, you decide.” Further refinements of the proposal, for example to include reforms to the length of active tenure of Supreme Court Justices, are also considered.

The Senate’s refusal to consider Merrick Garland’s nomination to the Supreme Court, followed by its efforts to confirm the nomination of Brett Kavanaugh to that Court, have brought to its inevitable conclusion half a century of partisan mobilization around the staffing of America’s super-legislature. The nominee’s own intemperate display at his confirmation hearing has all but destroyed any pretext that constitutional adjudication in our court of last resort can be seen as anything but partisan politics. (Full disclosure: I am one of thousands of law professors who signed an open letter opining that this display was evidence that Judge Kavanaugh is unfit to serve in the office to which he has been nominated, and I also oppose the nomination on other grounds, including but not limited to partisan grounds.) However the pending nomination is resolved, the perceived legitimacy of the Supreme Court as a trusted arbiter of legal and constitutional disputes of national importance–which has been steadily eroding for decades–seems unlikely to recover.

There are some who will welcome this development–who think that the Supreme Court’s perceived institutional legitimacy has always been a sham, and that the democratic deficits of judicial review far outweigh any redeeming value of the institution. Consider, for example, Chris Sprigman’s recent take:

Others, however, will mourn the Court’s lost legitimacy, and some of them are looking for ways to salvage it. Some such efforts are likely to frame the partisanship of the Supreme Court in structural (and perhaps Burkean) terms, as a mechanism to tie social changes of constitutional magnitude to especially long time scales through the mechanism of life tenure. John Fabian Witt recently predicted such a structural argument:

The argument has two possible readings. The first, and more cynical, reading is that evanescent electoral majorities in the political branches may, through luck, skill, and strategic persistence, use the Court’s power to harden their preferred policies into constitutional rules, making those policies more durable than any electoral majority can be expected to be. Call this the “Smash and Grab” argument. The second, and more favorable, reading is that the increasing but unaligned durations of official tenure held by Presidents, Senators, and Supreme Court Justices ensure that for legal and social changes of constitutional magnitude to be made, the proponents of such changes will likely have to prevail consistently in electoral politics over a long period of time, which may be a reliable indicator of democratic legitimacy. Call this the “Persistent Majorities” argument.

I have doubts about the Persistent Majorities argument precisely because it depends on the two least democratic features of our national electoral institutions–the Senate and the Electoral College. (This problem may inform Witt’s question “whether majorities will put up with” Supreme Court authority framed in these terms.) But I am sympathetic to the goal of framing Supreme Court legitimacy in structural terms, as well as that of mitigating its anti-democratic character with structural tools. And there are proposals afoot to try to do so.

Most notable of late are term limits proposals such as the one offered by a number of law professors organized under the “Fix The Court” banner, which would regularly stagger Supreme Court appointments and rotate Justices out of active service after a set number of years.  There have also been panel proposals that would have Supreme Court appeals heard by a (possibly random) subset of eligible Justices rather than the full bench. One recent proposal would staff such panels from such an expanded Supreme Court based on the “I cut, you choose” procedure adapted from game theory: the parties would propose panels to one another in an iterated process, which would end when one party agrees to a panel assembled by the other party. I have a slightly different proposal which draws on the same game-theoretic insight, and which could well be layered over any of these other proposals. I propose that the Justices who decide cases should not be the same Justices who choose which cases to decide.

At its most basic, the proposal would: (a) commit the question of selecting and certifying appeals for Supreme Court review to one group of judicial officers, and (b) commit the hearing and disposition of appeals so certified to a different group of judicial officers. Call the first group the “Certiorari Bench” and the second group the “Merits Bench.” The Certiorari Bench and the Merits Bench could be divisions of the Supreme Court imposed by statute, or the Merits Bench could simply be the Supreme Court while the Certiorari Bench would be a separate judicial body created by Congress to regulate the appellate jurisdiction of the Supreme Court.

The key insight of the “I cut, you choose” procedure is that the cutter has an incentive to limit any unfair partiality in the division of a resource between rivals, because any such partiality will likely redound to the benefit of the chooser rather than that of the cutter.  By structuring the Supreme Court’s work using an analogous “I choose, you decide” strategy, this proposal has the potential–if implemented effectively–to prevent the most polarized partisan issues from being constitutionalized through anti-democratic Supreme Court intervention.

In an era when Supreme Court Justices are transparently being nominated and confirmed based on their commitments to partisan positions on particular issues of policy enshrined in constitutional law, the power to both decide when to issue a ruling on such an issue of law and to then issue that ruling is substantial, and tends toward the Smash and Grab model of Supreme Court authority. Rather than pretend that such partisanship is not in play, this proposal seeks to check and balance such partisanship while maintaining the Supreme Court’s role as an authority on questions of federal and constitutional law–a more constrained version of the Persistent Majorities strategy that changes the default from partisan adjudication to no adjudication (at least at the Supreme Court level–the trade-off here is that inconsistencies in the interpretation of federal and constitutional law by the various Courts of Appeals may persist for extremely long periods of time).

For this proposal to be effective as a structural check on partisanship in the Supreme Court, however, the two groups of officers it calls for should not be aligned in their partisanship–otherwise cabals of Justices could collude across the division between the Certiorari Bench and the Merits Bench. There are any number of ways of assuring–or at least raising the probability–of such partisan misalignment between the Certiorari Bench and the Merits Bench, though there are obstacles. For example, some procedure might be devised for identifying the partisan adversaries of a nominating president in Congress and conditioning the appointment of a Justice on the Merits Bench on giving those congressional adversaries the power to identify candidates for appointment to the Certiorari Bench, or vice versa. But such proposals might founder on either constitutional limits regarding the prerogatives of the president and the senate over judicial appointments, or practical difficulties in binding senate majorities in advance on the exercise of their advice and consent powers. Moreover, it is not clear that service on the Certiorari Bench would be as attractive to highly qualified judges and lawyers without the promise of someday serving on the Merits Bench.

A particularly elegant alternative solution that avoids such obstacles would be for service on each Bench to be based on length of tenure. For example, this proposal could be integrated into the Fix the Court proposal for fixed terms of active service for Supreme Court Justices appointed at regular two-year intervals. The first several years of such a term could be served on the Certiorari Bench and the last several years could be served on the Merits Bench. The benefit of such a combined proposal is that, so long as service on the Certiorari Bench occupies at least eight years of a Justice’s term, it would ensure that no President could select Justices who would have the power both to decide which cases to hear and what the outcome of such cases would be. Moreover, if the Merits Bench were to have an even number of justices–which Eric Segall has notably recommended–it would be fairly easy to design the tenure of the Justices in such a way as to make it exceedingly unlikely for multiple presidents of any particular party to dominate both the Certiorari Bench and the Merits Bench at the same time–even assuming pliant senate majorities for confirmation. For example, a Court whose justices serve 18-year active terms–six on a Certiorari Bench of three judges followed by 12 on a Merits Bench of six judges–could not see both benches dominated by one party without that party controlling the White House for at least four out of five consecutive four-year terms, which has happened only twice since Reconstruction: the Democratic dominance under FDR and the Republican dominance of the Nixon-Ford-Carter-Reagan-Bush I years. Notably, even this danger could be substantially mitigated by extending the terms of Supreme Court Justices to 20, 22, or even 24 years and expanding the Court to, say, a Certiorari Bench of five or six Justices or a Merits Bench of eight Justices. Additional tweaks are obviously available, and could further influence the likelihood that any particular partisan bloc could dominate both the Certiorari and Merits Benches at the same time. For example, Justices could alternate between the two Benches in two- or four- or six-year intervals, or Justices could be assigned to the Certiorari Bench after their active terms on the Merits Bench expire.

The key feature of this proposal is that it uses structural design to give partisan actors incentives toward moderation in constitutional innovation or countermajoritarian policymaking through the courts. So long as the partisan policy preferences of the two benches are not strictly aligned, the Certiorari Bench has an incentive to select for adjudication only cases on which it does not strongly object to the partisan preferences of the Merits Bench majority, and the Merits Bench majority thus would have no opportunity to enshrine its most polarizing policy preferences in constitutional law. Such polarizing questions would then, of necessity, be left to democratic mobilization (or, potentially, regional variation). This leaves unresolved the deep democratic deficiencies of the American constitutional system–most notably the countermajoritarian structures of the Senate and the Electoral College–but at least takes one powerful anti-democratic avenue for policymaking off the table.

Another nice feature of this proposal is that it does not require the heavy lift of constitutional amendment. The appellate jurisdiction of the Supreme Court is completely within Congress’s control under Article III, Section 2 of the Constitution, which provides that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Indeed, it was Congress that created the discretionary docket in 1925, at then-Chief Justice Taft’s request. This discretion, combined with increasing partisanship of the Justices themselves, has over time undermined Alexander Hamilton’s famous defense of the federal judiciary as the “least dangerous” branch of the federal government in Federalist 78: that it “can take no active resolution whatever” and “may truly be said to have neither FORCE nor WILL, but merely judgment.” The power to select (or decline) cases to further partisan ends and then enshrine partisan preferences in constitutional law puts both force and will in the hands of those constitutionally entrusted with only judgment. This proposal avoids overburdening the Supreme Court by retaining some discretion over the size of its docket while moving that discretion from the hands of the adjudicators themselves to those of other judicial officers with institutional incentives to monitor the docket carefully. Congress clearly has the power to regulate the Supreme Court’s appellate docket, and it ought to do so in a way that creates structural pressures toward less judicial polarization.