Trending claims

Justices Scalia and Ginsburg were dead

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

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

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

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

Disempowerment arguments take the position that the Constitution permits or even requires reducing the Court's power to invalidate actions of the other branches of government

Section B looks to historical context to explore the role of substantive disagreement with the Court in past moments of national interest in Court reform and in the present moment

The substantive emergency represents a claim that the Court is crossing a moral line beyond which its decisions can no longer be respected

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

This excitement is out of the ordinary

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

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

The kind of substantive emergency that would require Court reform is different in kind from mere political disagreement

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

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

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

The formal debate is complicated with reasonable perspectives on all sides

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

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