A Comprehensive Proposal For Court Reform, V. 1.0
For American democracy to survive, we are going to have to do something about the current operation of our judicial system. But what is needed to fix it is more than just packing" the Supreme Court, as many have proposed, because the problems we're facing extend far beyond just its current personnel line-up. There are other things that could and should be done to the court system, and first. After all, expanding the Supreme Court is hardly an expedient change. Getting the desired result-more seats, filled by more preferable jurists-would require control of the White House to first change. But many of the other things we could do would likely only need a Congress committed to achieving them. We should start there, so that we can start making meaningful improvements without delay.
Furthermore, lasting, effective reform requires strategic thinking about how the entire federal court system functions, at every level and not just the Supreme Court. It requires that all of its interdependent parts be overhauled in a sensible, sustainable way that respects, and, when necessary, restores, American legal traditions. No change should be so radical that we throw out the baby with the bathwater, as there are plenty of good things about its previous and even current function worth saving-in fact, one of the biggest issues we're facing with the courts right now is how many of those traditions (ex: respect for precedent) are suddenly being ignored, in which case the radical reform" is simply to reverse that trend.
It is also important that the result of any reform effort minimizes the judicial branch being a political prize for future elected officials to fight over. That it has already become one is itself a big reason why reform is now warranted. We need a judicial system that can withstand political winds and gain legitimacy from doing so. It will take some political power to remediate what our judicial system has deteriorated into in order to restore its apolitical constitutional function, but such should be a goal of the exercise.
What follows, then, is a preliminary list of steps for Congress to take to achieve this comprehensive reform. Some will of course directly zero in on the Supreme Court, including changing how it is constituted, but such a change alone won't be enough, not even to address all the problems with the current Court. First and perhaps foremost Congress needs to take stock of the procedural rules all courts follow to ensure that litigation can from here on out unfold more predictably, especially when brought to check the power of another branch of government, which has become particularly difficult as of late.
Then there are other steps for Congress to take that focus on the administration of justice, writ large, to make this reform project sustainable, such as by realigning the appellate circuits and relocating any current Article I administrative law judges" we might still need so that they are under the supervision of the judiciary instead of the executive. We also need to revisit how the judicial branch is managed, including by (a) restoring some sense to the process that appoints jurists to the courts in the first place, (b) ensuring that judges at every level are subject to adequate professional regulation, and (c) enabling judges' removal, when necessary, with well-calibrated mechanisms that are neither overly aggressive nor as impotent as they have lately become. Meanwhile Congress will also need to statutorily clean up the mess the Supreme Court has made with its recent decisions, to the extent it is possible for legislation to do so.
Even more reforms than just those listed here may also prove to be necessary, but the key is that if we are going to achieve balanced and lasting change we cannot do any less than what is described here. Still, what follows also includes notes of caution for how each potential reform measure should be approached in order not to create new problems in the process of trying to address the current ones each reform is intended to address.
GENERAL APPROACH TO REFORM
Ground rules. In theory the sky is the limit, but, thinking pragmatically, particularly with respect to the need to begin this reform as soon as practically possible, it is helpful to limit the possible changes in a few ways.
No constitutional amendments. Effective court reform should not require any constitutional amendments, which take long periods of time to pass and are thus not easily modified if it turns out that one leads to undesirable consequences. They also are generally unnecessary, as there is plenty we can still do by statute. Congress has lots of power over the federal courts and has historically done plenty to regulate them. Any immediate reform should therefore continue in that vein.
No significant constitutional reinterpretations. Reforms also should not call for substantially different readings of the Constitution than we have generally accepted in the decades and centuries before now. Life tenure, for instance, is something that has long been read into the Constitution, even though it doesn't literally call for it in so many words, which means that perhaps we could choose at some point to interpret the constitutional language we've premised our understanding of it on differently. But we've read it this way all this time for important reasons that still are applicable and so should continue to.
Also, if we change too much about our judicial system too suddenly with this reform, then we risk unstable results. Some of these long-standing interpretations, going back even to Marbury v. Madison, which itself created the modern role of the Supreme Court we've accepted ever since, despite it not being literally spelled out in the Constitution this way, remain useful pillars to retain and work around, at least for now. There is still plenty we can improve with them remaining in place.
No political exclusivity. Perhaps most importantly, court reform cannot be the project of the political left, or right, or any particular constituency. While as a practical matter this project will only happen when Democrats have the political power able to implement it, it is critically important not to rebuild the American judicial system in a way designed to award them their preferred political prizes. At minimum such a system would be weak and lack legitimacy to anyone not subscribing to such preferences, and preserving the legitimacy of the courts is of tantamount importance-indeed, restoring the legitimacy of the courts is the animating objective behind the entire court reform project. Reform will therefore generally require being focused on sustainable judicial principles and not specific judicial outcomes.
It will also necessarily require people from across the political spectrum to help build the strong system of justice our democracy requires. Perhaps the project should not include those who have been too eager to tear down our constitutional order, but there are plenty on the right who have sincerely advocated for sustainable legal principles who should be meaningfully included in this endeavor. Without their participation it will be difficult to produce what is needed here: a sustainable system of ordered liberty that can survive any political era and last for generations. With this project we need to create a judicial system the public can always believe truly dispenses justice, and to everyone, no matter who they are and what their politics. It requires that principle, not policy, be the guiding light, and it's only with the contributions of all those who are so focused, regardless of their political stripes, that any resulting reform will be durable.
Common themes. For each specific proposal, a few themes are likely to emerge.
Personnel addition. One relates simply to the expansion of the number of judges we have on the bench. The unfortunate reality is that not every judge and justice currently serving in the court system is quite capable of or interested in protecting liberty and justice for all, or the constitutional system designed to deliver it. And at the moment those who lack those qualities have an outsized influence on the function of our democracy and the liberty it promises. It is therefore of basic mathematical importance to get more people on the bench who do have them.
But to suddenly pack" the courts with jurists prone to ruling in certain ways could turn the co-equal Article III branch of government into a political prize subordinated to politics in a way we have long tried to insulate it from in order to make sure jurisprudence, and justice, are not subject to political fortune. The solution to our current problems cannot be so craven as to simply stuff the courts full of more judges whom we would currently prefer, because it would mean that subsequent generations of politicians could keep packing it with those that they preferred instead.
Still, the current situation may nevertheless provide opportunities for expanding the number of judges in ways that are anchored in their own legitimate justifications for why at this particular moment in time it is an appropriate occasion to expand the number of jurists, yet in the future such an occasion is unlikely to repeat. In other words, one running theme throughout these specific proposals is how, while pursuing some other goal with each reform, we might also create the opportunity for such new additions, but in a way applicable only now and not in the future.
Tempered statutory authority. The courts are a co-equal branch of government with Congress. Nevertheless, Congress has a lot of control over their function: for instance, it helps assure they are funded, and it provides statutes relating to their operation, not just with respect to how they run as their own interests but in terms of how they handle the litigation brought before them. These reform proposals therefore relate to Congress asserting its control over the courts in order to ensure that there is greater predictability in the jurisprudence they produce than we are currently experiencing now.
But care should be taken to not be too heavy-handed and inadvertently subordinate the courts to Congress. We would not want to, both as a general constitutional matter and also for practical reasons. Indeed, while some statutory solutions can offer precision and predictability where we currently lack them, the fuzziness of leaving certain questions to the courts-both substantive and procedural-affords the flexibility that justice may require, which we would not want to eliminate. Congress cannot anticipate everything, and our common law-rooted courts need the free hand to not only self-regulate, thereby preserving their constitutional independence, but to also be able to develop the judicial solutions justice requires, particularly in accordance with long-standing judicial tradition. The problems we are experiencing today relate more to the fact that some courts have strayed from that common law tradition, and thus there is the need to statutorily reconnect them to those existing principles and precedent, and not to further remove them.
SPECIFIC REFORM PROPOSALS
Reform #1: Statutorily address procedural rules. The most expedient, and arguably most necessary, thing for Congress to do is address the ways the courts operate. With care, of course, because in many ways the courts are self-governing, both in terms of their internal operation and the way they oversee litigation, and successfully, such as with the federal rules they adopt to govern civil, criminal, and appellate procedure, as well as the rules of evidence, and it is important to preserve their independence. (Courts nevertheless should also take the occasion to review their own rules and themselves assess whether modifications are needed, particularly in light of the many stresses that Trump Administration litigation has exposed.)
But there are several ways that Congress could and should step in. To begin with, Congress could ensure that we have, and fund, such things as cameras in the courtrooms and online case archives so that judicial documents truly become the public records they are supposed to be and the judicial system overall becomes more transparent. In recent years transparency has improved, including with Supreme Court oral arguments now being contemporaneously broadcast and more appellate hearings being streamed online, but there is more that could and should be done on this front, and PACER remains an expensive, inefficient blight on the justice system. It may also be appropriate for Congress to ensure that there is more consistency in the rules of practice across the court system, particularly when local rules create too many bespoke exceptions without adequate justification.
There are also more major changes that Congress should make. One way is by addressing the ability for the courts to act. It has always spoken legislatively on questions of court jurisdiction, and there remains the need to say more. As an example, many of the jurisprudential issues we are currently suffering from have stemmed from parties forum shopping" and trying to get cases before courts expected to be unduly favorable, and Congress can and should shut down the ability to gain such advantage. It has also become much more difficult to bring certain challenges against unlawful government behavior. Where the courts (including, especially, the Supreme Court) have effectively shut the door to it, Congress can and should pry it open again, such as by using statute to ensure that government mischief can be effectively challenged because enough will have the standing to do it, and that it can be effectively restrained before it has had the chance to cause injury.
Another major way for Congress to make changes is with respect to the operation of the Supreme Court, which is not handling self-regulation well as of late. It has rules, but only some of them are articulated, and some, such as those governing its shadow docket, have proven to be shockingly arbitrary. The problem is in some ways tricky to address, because we cannot subordinate the Court to another branch of government, nor should we want to. Nevertheless there needs to be rules, transparent to everyone, and applicable to everyone, including the Supreme Court itself. Congress can and must ensure such rules exist, even if the Court still has a hand in writing them. Somebody needs to so that its jurisdiction can be understood, predictable, and regarded as legitimate when exercised, which it has lately not been.
Meanwhile, careful study of other procedural rules may reveal more ways Congress could improve the operation of the courts, especially to ensure that unlawful government action can be challenged in a way that produces usable remedies, whether injunctive, compensatory, or deterring. Qualified immunity," for instance, is a judge-made procedural doctrine at odds with the Constitution that has increasingly prevented such remedies, which Congress can statutorily negate. Naturally any proposed changes Congress makes need to be carefully calibrated to make sure they are actual improvements, but even simply addressing known areas of current dysfunction will do a lot to restore the courts to being the protectors of justice we need them to be.
Reform #2: No More Article I Judges. History has born out the wisdom of making the courts a co-equal branch of government, along with Congress and the Executive. When disputes arise, especially involving the other branches, it is important that the adjudicator be independent, and the American constitutional structure helps ensure that judicial independence because none of the other branches are the judiciary's boss.
But there are certain types of adjudication that we have allowed to happen where there is no such independence. For example, in the case of immigration law, immigration judges" end up having enormous power over the rights of individuals, yet without any of the structural safeguards of an independent judiciary. Despite the stakes, with people's lives and property hanging in the balance, the due process the Constitution requires is routinely denied to many. And the problem has only gotten worse so long as the people judging their fates are increasingly beholden to the government branch employing them, namely the Executive, and its embedded xenophobia. Given the hijinks of the Trump Administration, firing any immigration judge" attempting to maintain any pretense of independence, no matter how statutorily required, this constitutional mis-structuring of an important adjudicative body can no longer be tolerated. To the extent that we need specialized adjudication, like for immigration matters, the administrative law judges we employ to do that adjudication need to be answerable to the judiciary and not to any other branch. What we are asking them to do, apply law to facts, is what Article III judges are for.
Such a constitutional relocation would not necessarily mean, however, that immigration judges would have to be appointed to lifetime positions. The likely better analog is magistrate judges, who are not themselves Article III judges but work alongside them. These jurists handle a lot of court work, as appointed Article III judges do, but it is work subject to the supervision of those appointed Article III district court judges. From a practical standpoint they are fully empowered to handle many docket matters, but from a constitutional standpoint there is oversight by people who have been vetted by Congress and employed by the independent judiciary.
Obviously rolling any population of administrative law judge, such as immigration judges, into the judiciary will require its expansion, because all those judges will need to be supervised by district court judges and eventually appellate ones. But given the need to reinvigorate the judiciary with more jurists more principled than so many we currently have, such an expansion also provides an opportunity to put more on the bench, and for a reason that is unlikely to recur in the future on any similar scale. (In addition, Congress could also streamline immigration law to make it more reasonable and equitable, which would also perhaps lessen the need for so many immigration judges in the first place.)
Reform #3: Better manage the appointment, regulation, and removal of jurists. Putting administrative law judges under the supervision of the Article III judiciary, and, indeed, protecting the independence and authority of the Article III judiciary, requires making sure that the judiciary is populated with individuals capable of wielding the immense power we are entrusting them with. It cannot be riddled with self-serving, injudicious, intemperate, incapable and/or corrupt people and still fulfill its critical constitutional role.
Some of the infirmities currently plaguing the bench stem from Congressional dysfunction, which has rendered the appointment process a political spoil for the majority party to unilaterally seize to benefit its own political ends. While solving Congress may be beyond this particular judicial reform project, as part of a reform effort Congress could still potentially document in its rules better instructions governing how nominees should be evaluated and approved. It also could restore some sort of filibuster mechanism to help prevent giving lifetime appointments to particularly undeserving candidates-perhaps one not nearly so effortless and obstructive to employ as there has been in recent years, but one that nevertheless can provide some sort of emergency brake to prevent giving lifetime appointments to especially questionable appointees.
Once on the bench jurists also need to be subject to a certain degree of regulation in order to ensure that their jurisprudence can be trusted. Self-policing may generally be the best mechanism in order to preserve judicial independence, but any reform project should ensure that whatever mechanism the judiciary uses is sufficiently effective and also transparent, which may not always be the case.
The rules for the requisite good behavior" required by the Constitution also need to be applicable to any Article III jurist, including those sitting on the Supreme Court, whose self-policing efforts have been particularly insufficient as of late. Financial and political conflicts need to be treated with a seriousness that has often been lacking and require, at minimum, mandatory disqualification from adjudicating certain matters, if not from the bench entirely, depending on their nature.
There also should be specific rules to ensure that jurists are not unduly profiting from their position. As it is, their positions already grant them an unusual amount of power and influence; their status should not also be providing them with any more significant enrichment than their salary already does during active service, although it may be fair to raise salary levels above where they are now in exchange for constraining judges' ability to otherwise profit from their privileged position. A program allowing for leaves of absence or sabbaticals could also be considered; Court expansion could help open the door to such a program, because expansion might create a pool of justices that are rotated through to man smaller panels that actually sit to hear cases during a term. Ultimately we do want the best and the brightest on the bench, which means the job cannot come at too much of a cost to the individual serving in it. At the same time, however, with these jobs come inordinate power, and so the dignity and neutrality of these positions need to be preserved by all who serve in them.
Meanwhile, as for the incorrigible jurist, there needs to be a greater willingness, and perhaps even statutory obligation, for Congress to remove them. It should be a well-calibrated reflex to do so, one that is not so easy to employ that it obviates the independence we insulate each jurist's jurisprudence with through life tenure. The political unpopularity of some or even all of a judge's decisions should generally not be enough to warrant impeachment. But at the same time there has grown to be an almost obstinate refusal to ever employ the constitutionally-rooted, if not also constitutionally-required, impeachment remedy when certain jurists struggle to consistently deliver jurisprudence that can withstand its own independent scrutiny or otherwise engage in behavior that creates significant doubt as to their neutrality or competence. That Congressional inhibition is of particular concern now, given the rash of unqualified judges recently appointed.
Still, not every Trump-appointed jurist is necessarily removable; indeed, some conservative judges have well-proven their politically-independent capabilities, even if some of their decisions are unpopular, and there may even some liberal ones whose service is worthy of further scrutiny as well. We also need a mechanism to address judicial incapacity, so that justice is not held hostage to a life appointment unable to be trusted to dispense it, but at the same time these affected jurists are still human beings, including those whose incapacity may only be temporary, and we need to make sure their personal tragedy does not become a political cudgel that can be used to reshape the bench.
Reform #4: Realign the appellate circuits. Before addressing Supreme Court reform, it is important to first address realigning the appellate circuits, for a few reasons. One is that the Supreme Court is not responsible for all of the poor jurisprudence recently produced; some of it was produced by the Courts of Appeals, so there is as much reason-if not more-to expand the number of fillable seats on those courts as the Supreme Court, especially because they have jurisdiction to hear nearly all cases at some point but the Supreme Court weighs in only on a small subset.
Another reason is that realigning which appellate court gets to hear which cases has been long overdue simply as a matter of population growth and other logistical strains on the current circuit divisions. And then a bonus reason is that this realignment can ultimately provide a justifying anchor for any changes in the composition of the Supreme Court to tie into-although even without this added benefit circuit realignment should happen anyway.
There are currently thirteen circuits," or separate Courts of Appeals. Twelve are geographic, and then there is the specialized Federal Circuit that primarily handles patent-related matters, along with a few other esoteric subjects. The first way that realignment should happen is geographically, namely by splitting up the Ninth Circuit. Completely redrawing circuit boundaries would probably be ill-advised, as it would destabilize too much precedent, but splitting a circuit is not unprecedented: it's where the Eleventh Circuit came from, so we know how to handle it. And from time to time people have proposed it for the Ninth-although usually for ideological reasons to lessen its influence, and sometimes in very strange ways geographically (splitting a state, as some have suggested with California, would wreck the stability of any state law that gets swept up into federal litigation and thus should not be allowed to happen in any circuit realignment), although those calls have generally quieted as of late.
At this point, however, the Ninth Circuit should be split just for practical reasons, largely because it is disproportionately huge, covering the entire West Coast of the United States plus Alaska, the Pacific Islands (including Hawaii and Guam), and the interior states of Idaho, Montana, and Arizona. And there is really only one way to do it geographically: California, Nevada, and Arizona in one circuit, and the states to the north in the other. (As for the islands, in terms of population it would make sense for them to join the northern states-that circuit will be a lot smaller, although still commensurate with the First Circuit's population-but court access is an important consideration and it may be more feasible for litigants to get to California than Seattle, in which case they should be included with the former.)
Such a split would leave thirteen geographic circuits, for a total of fourteen. But there is one other step that should be taken in the realignment project: dissolving the Federal Circuit, which should happen for several reasons. The most important one is that we have by now learned that having an appellate court with specialized jurisdiction does not really make sense. It isn't needed: patents are not so special, which we know because we let regular district courts litigate them first anyway and the same Supreme Court adjudicates them later. Plus, with regard to its other specialized subject matter, the D.C. Circuit has already shown itself capable of adjudicating any other creature of administrative law.
Furthermore, the Federal Circuit's specialization tends to make its precedent unusually insular in how it develops, and its exclusive jurisdiction promotes forum shopping thanks to bootstrapped claims that would ordinarily be heard in other circuits. In sum, the Federal Circuit is an experiment that has proven itself unnecessary if not actually harmful, but dissolving it now also helps with some of the other logistics of larger judicial reform. For one thing it will keep the circuits at thirteen, even with the Ninth Circuit split, which will be a helpful target for Supreme Court seat expansion to be tied to. For another, there is also a need to expand the seats on the remaining geographic circuits-especially that of the Fifth and Eighth, which continually raise internal governance and quality issues with their jurisprudence.
Congress could of course simply expand the number of judges on each court, but it would likely be politically more justifiable to do if there were some other rationale associated with the increase in the number of appellate seats available to be filled. Some expansion can of course be justified just by population growth and caseloads; some could also be justified by the increased supervisory workload resulting from rolling Article I judges into Article III. If the Ninth splits there may also need to be some seats added for each half. But one easy way to get more judges on other circuits is from redistributing the ones currently serving on the now-dissolved Federal Circuit. Such transfers should be constitutional, as it wouldn't displace life tenure; after all, the judges would still have Article III jobs, and at the same judicial level. Congress should also always have the right to dissolve any court it had the power to create, and reallocating the judges means there won't be an issue with extinguishing a lifetime appointment early.
Reform #5: Reconstitute SCOTUS. America cannot continue as a constitutional democracy without significant changes to the current composition of the Supreme Court. It is currently controlled by a block of six jurists of, at best, dubious analytical skill, if not more dogmatic motivations. Even if they don't all intend to reshape our constitutional order-and at least some have made it clear that they do-their gormless naivete as to the effects of their jurisprudence, as well as lack of respect for precedent and an actual record, have invited injurious contortion after injurious contortion to the American rule of law. At minimum the personnel math needs to be changed in order to wrest control from that block. Which could, potentially, be subtractive, as several justices have behaved in a way that could warrant impeachment. But impeachment is politically more difficult to attain given the supermajority needed to effectuate it than a more additive strategy of just adding seats, which only takes a majority.
The question then is what to expand the Court to. Some have proposed expanding it to a very large, rotating pool of judges, who could be sat per term or per case, but although such a proposal has merit-it would, for example, mute the power any one individual judge could wield, and make the appointment less of a political prize for the President to win-it might require amending, or at least significantly reinterpreting the Constitution, which is a more fraught process and best avoided unless absolutely necessary. The same problem holds for proposals recommending, for example,eighteen year terms, which would also have the advantage of ensuring that every president would be able to appoint some as they came up, which would hopefully somehow dull the inclination to install particularly dogmatic jurists. The problem, however, is that proposals like these are so different from the status quo that it might not be possible to expediently or constitutionally implement them.
But one way to work around the block of six is to make sure that there are four more justices capable of overruling them, which would bring the composition of the Court up to thirteen. Thirteen also has its own, independent justification, because that's how many appellate circuits there are (and ideally would be), and, already each circuit is effectively supervised by a sitting justice, and such circuits are not currently equitably allocated. Making the number of circuits and justices match is a reasonable policy to pursue on its own merits, even if there were not a more exigent reason also prompting the expansion. But because there is this independent reason to have thirteen justices, it would presumably deter later political attempts to keep trying to pack the Court with even more justices, when there would not be a similar justification.
Reform #6: Rehabilitate Precedent. Reforming the Supreme Court is one thing; cleaning up the mess it's made is another.
It won't all be possible. For instance, the people on death row it allowed to die are already dead (at least most of them). For so much the Court has done, no matter how insupportably, there is simply no undo button.
Nevertheless, we can address the staying power of its recent decisions and wipe much of it away. While we generally can't undo a particular decision-it has already had its immediate practical effect, and there are some constitutional issues with Congress attempting to trump a particular determination-we could still statutorily limit a decision to its facts and rob it of any precedential value, thus causing any court encountering any similar legal question to have to consider it afresh, instead of being bound by the earlier decision that ordinarily would effectively operate as the law of the land.
That operation has generally presumed that the decision itself followed prior precedent, reflected the actual record, and complied with the Court's own procedural rules. Yet in so many instances, the Court has produced decisions that have deviated from all such practices. It is bad enough that such decisions were able to have immediate effect, but they certainly should not be able to reverberate into the future as statements of law. And given that Congress is the legislative branch and entitled to write the law of the land, it should have the power to ensure these decisions of doubtful legitimacy do not.
It wouldn't be unprecedented to treat decisions this way; it would be similar to what some courts themselves do to certain decisions by unpublishing" them and thus rendering them unsuitable to be relied upon in future matters. The only difference is that it would be Congress rendering them unusable and not the Court itself. Still, while doing so should be within its legislative purview it's a legislative power that should be used modestly. For one thing, displacing precedent strains the rule of law, even if it is bad precedent. Indeed, one of the problems the Supreme Court has presented us with is a lack of respect for precedent, which has left the public unsure about what the law actually is since it cannot count on any particular precedent to still be controlling. We would want to be careful not to exacerbate the same problem we are trying to fix in the course of trying to fix it, but the exercise itself is essentially one designed not to replace precedent but to restore the precedent that the Court displaced, yet without the analytical care ordinarily needed to do so.
Furthermore, not everything the Court has recently done is necessarily bad. We therefore wouldn't want Congress to automatically nullify everything the Court has recently done. Instead only a selection of cases should be subject to such treatment. A committee could be formed, perhaps of lawyers, retired judges, and academics, who could review the Court's recent decisions-perhaps going back to the Gorsuch appointment, when the conventional operation of the Court was diverted via Senatorial appointment hijinks-to make recommendations for which decisions are most suspect and thus deserving of this legislative dulling.
It is of course a big deal for Congress to supersede a fellow government branch. But it is also a big deal when the Court has superseded Congress. And what is being called for here is not to trump a particular legal conclusion the Court has reached in any particular case but to play its constitutional role in making clear what the law actually is in places where the Court has muddled it.