76. A Taxonomy for Court Reform

There are lots of different proposals out there for how Congress could seek to reform the Supreme Court. In general, they fall into three very different (albeit sometimes overlapping) categories.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

This week’s “Long Read” was prompted by the introduction, last week, of competing bills from Senators Schumer and McConnell that are putatively aimed at limiting judge-shopping; nationwide injunctions; or some combination of the two. Although neither of those bills are directed at the Supreme Court, I take them, and other less-visible developments, as (very positive) signs that court (and Court) reform is finally getting some attention on Capitol Hill.

But first, the news:

---

On the Docket

The Court handed down three decisions in argued cases on Friday—the 12th, 13th, and 14th of the term. Briefly:

1. In Sheetz v. El Dorado County, Justice Barrett, writing for a unanimous Court, held that, for purposes of the Fifth Amendment’s Takings Clause, a condition on a land-use permit (e.g., a traffic impact fee) triggers the same analysis whether it’s imposed by the relevant legislature or by the executive. The real fight in the case isn’t about that holding, but about a question the Court didn’t decide: whether different analysis does or should apply when these kinds of permitting conditions are applied to a specific piece of land versus an entire “class” of properties. That dispute prompted separate concurrences from Justice Gorsuch and from Justice Kavanaugh (joined by Justices Kagan and Jackson), presumably demarcating the lines of division in a future case properly raising the issue.

2. The issue and holding in Macquarie Infrastructure Corp. v. MOAB Partners, L.P., were well summarized by Justice Sotomayor in the first paragraph of her opinion for a unanimous Court: “Securities and Exchange Commission (SEC) Rule 10b-5(b) makes it unlawful to omit material facts in connection with buying or selling securities when that omission renders ‘statements made’ misleading. Separately, Item 303 of SEC Regulation S–K requires companies to disclose certain information in periodic filings with the SEC. The question in this case is whether the failure to disclose information required by Item 303 can support a private action under Rule 10b–5(b), even if the failure does not render any ‘statements made’ misleading. The Court holds that it cannot. Pure omissions are not actionable under Rule 10b–5(b).”

3. And in Bissonnette v. LePage Bakeries Park St., LLC, Chief Justice Roberts held, again for a unanimous Court, that the exception the Court had previously read into the Federal Arbitration Act for “transportation workers” applied not just to those working in the “transportation industry,” but also to workers in other industries involved in the transportation of goods—so that disputes between those workers and their employers can’t be forced into arbitration.

In case you’re keeping score, that’s three majority opinions each for Justices Sotomayor and Barrett, whereas we’re still waiting for the first from Justices Thomas and Alito (Bissonnette was Roberts’s first of the term). That’s probably at least as much a reflection of seniority in opinion assignments (through which more contentious/divisive cases are more likely to be assigned to more senior justices, where Thomas and Alito check in as second and third, respectively) as it is of the speed of individual justices. (As a reminder, the Court at least tries to balance out the assignments over the course of each argument session.)

And in the only full Court rulings on emergency applications last week, the Court cleared the way for Missouri’s execution of Brian Dorsey by denying, over no public dissents, two applications for stays.

Turning to this week, we expect a regular Order List at 9:30 ET today, along with opinions in argued cases both tomorrow and Wednesday at 10:00 ET. The Court’s April argument session kicks off later this morning, as well—with two arguments starting shortly after 10:00 ET. One of these days, the Court is going to rule on Idaho’s application to put its ban on gender-affirming medical care for transgender adolescents back into effect. But that application really does seem to be bound up in the bevy of cert. petitions raising similar questions—so that we’re likely to not hear about the former until the Court disposes of the latter, too. Otherwise, there are no pending emergency applications likely to provoke full Court rulings this week—although that can always change.

---

The One First “Long Read”:
How to Think About Court Reform

Whatever else might be said about last week’s news that both Senator Schumer and Senator McConnell have introduced (very different) legislation that purports to address the problem of litigants seeking nationwide relief from outlier district judges, it seems like an unalloyed good thing that the legislature is once again thinking about the courts. There’s also been some grumbling behind the scenes about Supreme Court-specific reforms. Together, these developments provide a good excuse to think a bit more holistically about the various calls for reforming the Supreme Court, specifically—including the different types of reforms that are being discussed.

One of the points that, to my mind, has been missing thus far from Supreme Court reform conversations is a genuine effort to distinguish between different classes of reforms. Lots of individual ideas are getting bandied about (including by me), but my goal today is to try to step back and look at the reform conversation more comprehensively—to offer a way in which we might sort all possible reforms into different categories based upon the effects that they would produce and the political and/or legal pushback that they would (likely) provoke. Reasonable minds are surely going to differ about what (if anything) Congress can and should do. My point in this post is that we ought to at least be nuanced in differentiating among the possibilities, both in how we describe them and in how we think about the low and high politics surrounding them. Indeed, with such nuance underfoot, my own view is that it becomes clear why Congress can and should gravitate toward one specific set of proposals.

The Supreme Court, as pictured from the Capitol Dome

Category I: Composition-Changing Reforms

Perhaps the most aggressive set of reform proposals involves reforms geared toward changing the current composition of the Court—most typically by “expanding” the Court to 13 justices through a statute that would add four new seats to the bench. Whether justified as recalibrating the Court’s size to the number of circuits (something Congress did from 1789 to 1801 and 1802 to 1866); or, more transparently, as retaliation for the political machinations of the 2016–2020 era; or, most brazenly, as a way to arrest the Court’s shrinking caseload, Court expansion tends to be at the top of a lot of progressive reformers’ wish list.

Changing the size of the Court is something that is clearly within Congress’s constitutional authority (indeed, it’s done it seven times after initially creating a six-justice bench in 1789). But these proposals, as much as any, are perhaps the most overtly partisan, since they are designed and intended not only to limit the power of the current Republican-appointed majority, but to give that power to a more ideological balanced Court.

I’ve written before about why I’m wary of Court expansion, specifically. For present purposes, even if reforms aimed at changing the Court’s composition were politically viable (and it’s hard to see how that could ever be possible without a Democratic trifecta that includes a filibuster-proof majority in the Senate—and perhaps not even then), the principal objection to such reforms, in my view, is that they would only reinforce the perception of the Court as a font for the exercise of partisan political power—a race to the bottom in which no one (except those who would like for the Court to be irreparably damaged as an institution) wins. Put another way, reforms in this category would tend to have (1) high political barriers to entry; and (2) potentially high institutional costs, even if the short-term result were to make the Court more ideologically heterogeneous.

Category II: Power-Limiting Reforms

A second major category of reforms are those focused not on the composition of the Court, but on its power. For instance, “jurisdiction-stripping” proposals (to prevent the Court from deciding certain types of cases); or proposals to require a supermajority vote before the justices can invalidate government action (a measure that the House of Representatives actually passed in 1868, only to have it die in the Senate); or proposals to impose a higher standard of review in certain cases, all circle around this same basic idea: That Congress can and should reassert its ability to keep cases away from the Court and/or to limit the Court’s ability to act against the democratically elected branches in the cases that it hears.

The devil is really in the details in this category. Congress has pretty broad power over the Court’s appellate jurisdiction (there’s a debate as to whether that power is plenary; I’m of the view that it probably isn’t). And Congress also has broad power over standards of review—especially for statutory claims. To me, the harder question about reforms falling into this category is about their efficacy. Unlike Court expansion (which, were it to happen, could produce pretty immediate effects), here, the more dramatic the effects of the reforms, the more serious the constitutional objections to them would become.

For instance, a statute barring the Supreme Court from striking down any gun control regulation on the ground that it violates the Second Amendment would raise grave constitutional questions; a statute that limits when and how the Court can entertain such cases may not, but at the expense of actually cutting the Court out of the loop. And the Court could frustrate a supermajority requirement (assuming it were constitutional) simply by internally agreeing that anytime a majority votes to strike down a statute, a supermajority of justices will approve at least that part of the ruling. Finally, with regard to imposing higher standards of review, that assumes that the justices will faithfully abide by such new standards. One of the recurring critiques of the Court’s behavior with respect to emergency applications in recent years is that the majority regularly flouts even the standards the Court has previously articulated.

Put another way, if, like me, you think that the Constitution wouldn’t allow Congress to keep an entire category of constitutional cases away from the Court, or to tell the Court how to do its job in cases properly before it, then reforms in this space would likely have to be (significantly) less than 100% effective in order to be constitutional. At that point, the question becomes whether the benefit is worth the cost (and, it should be said, the political capital). Reforms in this category may not come across quite so transparently as partisan as those geared toward the composition of the Court, but they would still almost surely involve a Democratic trifecta reining in a Republican Court, and one can imagine how that will be portrayed, fairly or not.

Category III: Accountability-Enhancing Reforms

This leads to the third category—and the one I’ve written about the most in prior issues of this newsletter: Reforms designed to enhance the Court’s accountability without changing its composition or reducing its formal power. There are a lot of examples here, but these would include: (1) expanding the Court’s mandatory docket; (2) an Article III Inspector General along the lines I’ve previously proposed; (3) codification of existing standards (as opposed to raising the standards) for emergency relief; (4) more public congressional oversight of the Court (including of its budget); and (5) at a more basic level, more congressional engagement in the Court’s day-to-day work.

None of these are as visible or, at least to this point, as popular as reforms geared more directly toward changing who’s on the Court or how much power it has. In that respect, they won’t have nearly the short-term impact for which many of the Court’s critics are clamoring. Nor will they prevent the current Court from taking the cases that at least four of the justices want them to take—or directly stop the Court’s majority from doing … whatever it wants to do … in those cases.

But it’s possible that those realities can be viewed as a feature, rather than a bug. Reforms that will have subtler, longer-term effects, and that are less about stopping the Court from doing specific things than about pushing the Court to situate its work against a better and healthier interbranch dynamic should properly be perceived as less partisan—and as efforts to

Other Possible Reforms

I don’t mean to suggest that the above three categories are exhaustive. Consider proposals to impose term limits on the justices—whether through a statute or a constitutional amendment. Although those could be framed as changing the composition of the Court, that probably wouldn’t happen anytime soon—especially if it came as a statutory reform (it’s hard to imagine a universe in which two-thirds of both chambers of Congress would ever support anything). Even if term limits could be imposed by statute (a matter of more than a little debate), they’d probably have to apply only to future justices to be constitutional (since the Constitution has been read to prevent Congress from applying material changes to the conditions of an office to an incumbent). As with accountability-enhancing reforms, the long tail and modest immediate impact is both what makes term limits more politically feasible and less likely to placate the Court’s harshest critics.

And that leads to a final thought: At least based on my own discussions, there is a substantial amount of disagreement among progressives and other critics of the current Court about what should be the top lines of any reform agenda. There’s an obvious desire to focus on the most visible, immediate reforms—both to galvanize support among Democratic voters and to attempt to create political conditions on the ground in which those proposals might have a chance of making it into law.

My own view is that these efforts are missing an opportunity to raise public awareness of, and build consensus toward, reforms designed more to put the Court on a level playing field with the other branches of government—for three different reasons. First, as I’ve suggested above, the more aggressive and partisan the reform is (or is perceived to be), the less likely it is to make it into law—even in a future world in which Democrats simultaneously control the House, the Senate, and the presidency. Second, and more prosaically, it seems like an effort to make the Court more accountable would not just have a better chance of making it into law in the short term, but would also be more effective in creating the conditions for some of the more aggressive reforms—if, for example, the Court were to resist measures as benign as modest expansions to its mandatory docket or the creation of an Article III Inspector General with no authority to punish misbehaving justices.

Third, and perhaps most personally, my own view (as anyone who has read the Conclusion to The Shadow Docket will know) is that our constitutional system depends upon a legitimate and strong Court—that a bulwark against tyrannies of the majority is as important now as it’s ever been. Changing who’s on the Court won’t, of itself, make the Court more accountable. Imposing term limits won’t of itself, make the Court more accountable. Taking away the Court’s power to do certain things won’t, of itself, make the Court more accountable. The way to make the Court more accountable is to create more accountability—through greater congressional involvement and engagement with the Court as an institution, with the justices’ behavior, and with their workload. We could have the exact same Court with the exact same powers, but with the specter of meaningful interbranch accountability pushing the justices to wield those powers more responsibly.

I’ll be the first to admit that accountability-enhancing reforms aren’t perfect. But prioritizing that category strikes me as a better (and more politically viable) way forward than anything else that’s out there, not just because of the low politics of the moment, but because of the high politics of our institutions, too.

---

SCOTUS Trivia: Tax Day?

Speaking of constitutional amendments, I couldn’t resist the chance to mark April 15 by introducing those not already familiar with it to the Supreme Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Co. In that case, a 5-4 majority, in an opinion by Chief Justice Melville Fuller, held that taxes on certain types of income under an 1894 congressional statute were “direct” taxes, and were thus unconstitutional insofar as they were not apportioned based on population under Article I, Section 2, Clause 3 of the U.S. Constitution.

18 years later, Pollock became the third Supreme Court decision to be overruled by constitutional amendment—when the states ratified the Sixteenth Amendment: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

In case you’re wondering, the first two examples were the Eleventh Amendment (which overruled Chisholm v. Georgia) and the Citizenship Clause of Section 1 of the Fourteenth Amendment (which overruled Dred Scott). In the 111 years since the Sixteenth Amendment was adopted, only one constitutional amendment has overruled a Supreme Court decision: The Twenty-Sixth Amendment, which bars denial of the right to vote based on age to anyone 18 or older. Passed and ratified during the Vietnam War, the amendment overruled the Supreme Court’s 1970 ruling in Oregon v. Mitchell. Mitchell had upheld that part of the 1970 amendments to the Voting Rights Act that lowered the voting age to 18 in federal elections, but struck down the amendments as applied to local or state elections.

Even with the Twenty-Sixth Amendment, that’s still only four of the 17 post-Bill of Rights amendments, across 233 years, that have overruled constitutional interpretations by the Supreme Court. As my friend and comparative constitutional law expert Kim Lane Scheppele has pointed out elsewhere, the United States is one of the only democracies that has both such a strong Supreme Court and such an onerous constitutional amendment process.

---

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one. This week’s bonus issue will drop Thursday morning. And we’ll be back with a regular issue next Monday.

Until then, happy Tax Day, everyone! I hope that you have a great week—at least after today.