Adapted from “How to Save the Supreme Court” by Daniel Epps & Ganesh Sitaraman

Problem

The Supreme Court could face a legitimacy crisis. It has grown increasingly political in the past decade, especially following Mitch McConnell’s refusal to grant a hearing to Obama’s Supreme Court nominee, Merrick Garland. It is the only federal court that is not bound to ethics rules, which leaves justices to decide for themselves whether or not to recuse themselves from cases in which they have a conflict of interest.

Executive Summary

Structural reform has the potential to create greater independence on the Supreme Court and create a more ethical institution. The Supreme Court lottery is one of the most promising reform pathways, as it can likely be achieved via federal statute. The lottery may be able to reduce the power any single justice maintains, depoliticize the nomination and appointment processes, reduce the power of judicial review, and encourage recusals when justices have a conflict of interest in a case.

Recommendations

One way to structurally reform the Supreme Court is to establish a Supreme Court lottery. In this proposal, every court of appeals judge would be made an associate justice of the Supreme Court. For each case that goes before the Supreme Court, 9 justices would be randomly selected to serve on the bench. Another set of randomly selected justices would replace them for the next case. A maximum of 5 justices appointed by presidents of a single party could serve at the same time. Only a supermajority of 6-3 could declare a law passed by Congress unconstitutional.

Effects

The Supreme Court lottery would decrease the power that any single justice has, as the justices will constantly be rotated on and off the bench. It could also depoliticize the nomination and appointment processes because they would become frequent and less consequential. Justices would not be able to successfully implement a political agenda because another group of justices would replace them for the next case.

With justices in a constant state of rotation, lawyers would not be able to abuse the system by bringing cases to the Supreme Court based upon their prediction of the way the justices will rule.

With a 6-3 supermajority required for judicial review, the elected branches of government will regain some power. Justices appointed by a party different from the sitting president’s party would need support from justices appointed by a president of the same party as the current president in order to strike down laws passed by Congress. Because the bench will not seat more than 5 justices appointed by a president of a single party to preside over a case, federal statutes cannot be struck down without the support of at least one justice appointed by a president of the party the sitting president is a member.

If one of the randomly selected justices has a conflict of interest, the justice may be more likely to recuse himself or herself knowing that another justice can easily be selected. Former Chief Justice William Rehnquist suggested that justices have a duty to remain on the bench because Supreme Court justices cannot be interchanged as judges on the lower courts can. He believed that the obligation to “to sit” outweighed justifications for recusal. With the Supreme Court lottery, a new justice can easily be selected to replace the justice with a conflict of interest. Therefore, the “duty to sit” doctrine can no longer be used as an excuse to forgo recusal.

Feasibility

Under the Judiciary Act of 1789, Supreme Court justices were also assigned positions on lower courts. The Judiciary Act of 1869 replaced the Judiciary Act of 1789 and created federal circuit courts. However, the Act of 1869 did not establish circuit judgeship, which meant Supreme Court justices would still serve on lower courts. This practice existed until 1911.

The Jurist explains that Congress’ passage of the Judiciary Acts indicates its power to control the structure of the federal courts. Therefore, a rotating panel of justices could be possible with an act from Congress. Congress has the power to change the size of the Supreme Court.