The case for disempowerment: Professor Samuel Moyn on Supreme Court reform

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With the 2020 Presidential election just weeks away, the focus of the campaign has changed dramatically with the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, a titan of the law who served for nearly three decades on the High Court. Supreme Court reform is now a fundamental part of the national conversation. Samuel Moyn, Henry R. Luce Professor of Jurisprudence at Yale Law School and a Professor of History at Yale University, has been writing extensively about Supreme Court reform in recent months. In a California Law Review article titled, “Democratizing the Supreme Court,” Moyn and his co-author Professor Ryan Doerfler argue that the goal of reform shouldn’t be to make the Court less ideological, but to make it less powerful. We talked to Professor Moyn about what inspired his interest on this topic and what types of reforms he thinks should be considered in this highly polarized moment.
 

Q: What inspired your recent Law Review article on this topic of Supreme Court reform?

A: Several students came and “drafted” me, after a contentious semester at the school. They wondered how they could make their coursework even more relevant, after the confirmation at the Supreme Court of Brett Kavanaugh. Their basic question was: what are the imaginable institutional reforms to the Supreme Court, and how can we compare and contrast those reforms with each other? The students organized a course, we hosted many eminent guests from inside and outside the school, and they produced legal analysis that proved foundational to making their website. I would never have embarked on this scholarship without the impetus and stimulus the students provided in staging the course.
 

Q: In your Law Review article, you note that there are two types of reforms. One is to adjust the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office. This is more frequently discussed. The second focuses on “disempowering reforms” which makes the Court itself less powerful. Can you detail some of those ideas and explain why you think that is a better concept?

A: Remedies like “court-packing” alter the personnel on the Supreme Court, but do not affect its institutional power. That means that outcomes depend on how the personnel use their judicial authority, and invites repetitive personnel adjustment — a risk of tit-for-tat court packing or other personnel adjustment every time Congress changes hands. By contrast, reforms like changing the Supreme Court’s jurisdiction, or inviting it to reach a supermajority of justices to invalidate federal legislation on constitutional grounds, shift authority to the political branches and away from the Court — no matter who staffs it. That shift would make our nomination fights less intense, and provide less reason to engage in tit-for-tat warfare over the personnel on the Supreme Court in general.
 

Q: What are the biggest benefits of some of these disempowering reform options that you think can appeal to both sides in such a divided moment?

A: Conservatives have been calling for Supreme Court reform for much of the period since World War II, and our position is that the disempowering reforms, which merely transfer power to the political branches, are meant to be as appealing to all Americans who believe in democratic self-determination. If one or more of the disempowering reforms were successful, we would no longer have to rely on the self-enforcement by judges of restraint, because less would be up to them, and more to the rest of us. It might also lead us in law schools to make judges — especially Supreme Court justices — less central to how we imagine the purposes of the law, and the highest lives within it.

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