Can Structural Changes Fix the Supreme Court?

• Published in: The Journal of economic perspectives Vol. 35; no. 1; pp. 119 - 142
• Main Author: Hemel, Daniel
• Format: Journal Article
• Language: English
• Published: American Economic Association 01.01.2021
• Subjects: Polarization in Courts
• ISSN: 0895-3309; 1944-7965
• DOI: 10.1257/jep.35.1.119

Proposals for structural changes to the US Supreme Court have attracted attention in recent years amid a perceived "legitimacy crisis" afflicting the institution. This article first assesses whether the court is in fact facing a legitimacy crisis and then considers whether prominent reform proposals are likely to address the institutional weaknesses that reformers aim to resolve. The article concludes that key trends purportedly contributing to the crisis at the court are more ambiguous in their empirical foundations and normative implications than reformers often suggest. It also argues that prominent reform proposals—including term limits, age limits, lottery selection of justices, and explicit partisan balance requirements for court membership—are unlikely to resolve the institutional flaws that proponents perceive. It ends by suggesting a more modest (though novel) reform, which would allocate two lifetime appointments per presidential term and allow the size of the court to fluctuate within bounds.