Once unimaginable, the prospect of Supreme Court reform now seems real. Republican presidents have appointed fifteen of the last twenty Justices despite losing the popular vote in seven of the last eight elections, and these figures can no longer be chalked up to the timing of vacancies alone. After blocking President Obama’s nominee for Justice Scalia’s seat for almost a year to purportedly give “the American people a voice in selecting their next Supreme Court Justice,” Senate Republicans filled Justice Ginsburg’s seat with President Trump’s nominee mere weeks before the 2020 election. With Democrats now in control, the debate has turned to what new policies might replace the old, defunct norms.
According to conventional wisdom, this debate revolves around one task: identifying the reform plan that best threads a needle between political reality and legal rigor. This is because Congress will presumably get “one shot” before the benefits of time and inertia shift to the Court itself. The consequences of this framing are profound: reformers water down popular policies to protect against invalidation, court-packing dominates the debate based on its constitutional credentials, and the chance to achieve real change quickly starts to slip away.
This Article challenges the premise Congress must take such a passive approach to judicial review, expressing policy preferences in seriatim fashion (and being “sent back to the drawing board” each time a policy fails). This approach merely reflects institutional habits. And by failing to question these habits, reformers forfeit an enormous amount of legislative power.
Congress can reclaim this power by strategically structuring judicial review using two methods.
First, Congress can constitutionally safeguard its reform agenda by layering its policy preferences from most politically desirable to most legally defensible using “fallback” (or “backup”) law. If the Court holds the first preference unconstitutional, the second will automatically take its place—and so on. Thus, the Court shoulders the inertial cost of its own unpredictability. While it retains the power to evaluate each layer’s lawfulness, it cannot wage a war of attrition against Congress.
Second, Congress can politically safeguard its power by designing appellate procedures that consolidate and prioritize all challenges to the law. By giving the same coalition that enacted the law a chance to respond to the Court’s decision, this approach insures against the tail risk of total invalidation and prevents the Court from “running out the clock” against Congress.
By identifying how existing court-reform proposals price in the inertia- and time-related risks of a passive approach and by proactively neutralizing those risks, this more strategic frame opens up new reform possibilities. It also offers two warnings. First, because the time available to Congress is a source of institutional power, Congress should begin its work straightaway and enact a reform package as early as possible in the current session. Second, Congress should avoid pursuing a single “best” policy given that this could perversely shrink the space for agreement. Instead, Congress should layer its reform proposals in whatever way produces the strongest coalition and the most durable plan.
