Politics

Interest in reforming the Court grew in the late 2010s and early 2020s as the public's relationship to the Court changed

Faith in public and private institutions had declined for Americans across the political spectrum

Supreme Court reform is in the air

This excitement is out of the ordinary

Formal arguments refute the objection that Court reformers are nothing but sore losers

Many would dispute that this Court has transgressed that kind of boundary

Procedural-fairness arguments take the position that the way that Justices are currently selected is too partisan or arbitrary to be consistent with justice

People have supported the Court more than Congress or the presidency over at least the last fifty years

Justices Scalia and Ginsburg were dead

President Trump had appointed three Justices each to the outrage of liberals and progressives

The Court started a new era in which it declined to protect abortion and voting rights and invalidated affirmative action environmental protection and gun control policies as its membership changed

One might think Supreme Court reformers are progressives who lost the judicial game and want to change its rules so that they win because the pro-reform moment coincides with the Court's rightward turn

An important question for reformers is why the Court ought to be changed other than competing political interests because selfish disregard for the rules would not be a very persuasive reason to change the Court

Formal arguments are abstract ideas about the Court's structure and role in our democracy

Formal arguments answer questions like how much power the Court should have over other branches of government how Justices should be appointed and how and when the Court's power or membership can be changed

Substantive arguments answer the question is the Court doing the right thing

Reformers begin with widely accepted principles citing support from the Constitution historical practice or political design and they persuasively explain how those shared principles favor Court reform

The formal debate is complicated with reasonable perspectives on all sides

The formal debate by itself does not provide a conclusive answer to how the Court ought to be structured or why that structure ought to change

This Chapter argues that looking to the substance of the Court's decisions brings a more complete case for Court reform into view