‘It’s a Crazy Way to Run a Country’: How to Reform the Supreme Court

You could say that this past week of political bedlam following the death of Justice Ruth Bader Ginsburg was unexpected — the despair of liberals, the glee of conservatives, the foreboding sense of a coming political Ragnarok — but why lie to yourself? Ginsburg was 87, a four-time cancer survivor, the fourth-oldest justice ever to serve.

What is perhaps unexpected is that it took Ginsburg’s death for Washington to confront the fact that the Supreme Court faces a legitimacy crisis.

“This is a long-overdue reckoning,” says Daniel Epps, a law professor at Washington University in St. Louis who clerked for Justice Anthony Kennedy and has become an authority on how the court works—and why it doesn’t. “Maybe a crisis will cause Americans to really reconsider: Why do we give the courts so much power?”

The Ginsburg replacement has pushed Democrats, and even some Republicans, to ask how an unelected nine-member body came to be so influential that a single justice’s death can trigger not just political war in Congress, but potentially a fundamental shift in the rights of women, LGBTQ people, and racial and religious minorities.

“Nothing important should turn on whether some old person chooses to retire or keep working until they’re in their 90s,” says Epps. “It’s a crazy way to run a country.”

So, what’s a more sensible approach? In 2019, Epps co-authored an influential piece in the Yale Law Review surveying some reform ideas for the Court, from term limits to court-packing, and offering a few alternatives of his own. As the nation again plunges into a discussion about the court’s future—and what that means for not only our country, but the basic functioning of democracy—POLITICO spoke to him about all of this and more. What follows is a transcript of that conversation, condensed and edited for length and clarity.

Zack Stanton: How did clerking for Justice Kennedy change the way you think about the Supreme Court?

Daniel Epps: It’s full of very smart people who take their jobs really seriously, who don’t think of themselves as partisans, who try to work together to try to find common ground with people who have different values than they do. But I also saw that it’s a very, very powerful institution, and one that perhaps should be subject to a bit more ordinary democratic governance. It’s very secretive. There’s no transparency—they release opinions that announce their judgments, but beyond that, you’re not supposed to talk about anything that goes on there. That’s strange in light of how powerful an institution it is.

Even if they’re not partisans, who is on the court matters a lot. The fact that Justice Anthony Kennedy was appointed rather than Robert Bork or Douglas Ginsburg—who were both nominated before him but did not successfully get confirmed—made a big difference to American law in a lot of ways.

More generally, it’s harder and harder to get away from this idea that the court’s membership is just somewhat random, and for whatever reason, those coincidences have ended up privileging Republicans. Richard Nixon got four court vacancies to fill in his first term. Jimmy Carter served for one term and got zero. Donald Trump has had three in four years. Over eight years, Obama got two—he really got three, but Republicans denied him the last one. Republicans have appointed, depending on whether you count William Rehnquist moving from associate justice to chief justice, either 14 of the last 18 Supreme Court justices, or 15 of the last 19—even though they’ve held the presidency for just more than half of the last 50 years. It’s very hard to justify that.

Stanton: Since Justice Ginsburg’s death, we’ve been in what is, to Democrats, a somewhat apocalyptic fight over her potential replacement. Is there anything in the last few days that has surprised you?

Epps: Well, it’s interesting how quickly people are seriously talking about court-packing. This is something that was seen as unthinkable for many decades. When people were talking about it even just a year or two ago, it was still seen as a little bit of a fringe idea—people were interested in it, but it was seen as kind of wacky. And in just the last 72 hours, I’ve seen a lot of people sort of saying, “OK, that has to be the path forward.”

Ultimately, regardless of how you feel about court-packing, this is a long-overdue reckoning. The Supreme Court has a really big role in American life, and it’s increasingly hard to justify giving it that important role. Maybe a crisis will cause Americans to really reconsider: Why do we give the courts so much power? Why do we have this powerful institution when there’s no clear relationship between democratic elections and its membership? I think that reckoning is welcome.

Stanton: Before going through some of the specific reform proposals, let’s talk about the underlying cause behind them: legitimacy. What do we mean when we talk about the legitimacy of the court?

Epps: It’s a very slippery term, and people use it to mean a lot of different things. For our purposes, maybe the most helpful way to describe it is as the ability of the Supreme Court to resolve disputes in ways people find acceptable even if they don’t like the decision.

We live in a society where there are fundamental disagreements about a lot of questions, and we are never going to come up with resolutions satisfactory to everyone. We need some institution or set of institutions that can resolve some of those questions in ways people are willing to live with—because if they don’t, it all just descends into sectarian warfare, and we don’t have a stable society.

Part of “legitimacy” requires a belief that the court is doing something other than just raw partisan politics. If we think of the court as just this council of partisans, where the Republican-appointed ones vote for Republican policies and Democratic ones vote for Democratic policies, then it’s not clear why people should find those resolutions any more satisfactory than the ones reached by the political branches of government. The more that the Supreme Court is seen as a purely partisan institution, the greater the challenge to its legitimacy.

Stanton: How do you differentiate between “the law” and “politics”? I forgot who originally made this observation, but it has been said that the law is just the politics of a moment frozen in time.

Epps: What you’re asking is a really, really hard question, and it’s one that anyone who thinks seriously about law struggles with. There are different ways you can think about it. There’s this sort of conservative position, which is that the law is a fundamentally different enterprise than politics—that it’s almost like math: You can just look at it, and there’s always going be a right answer, you just have to think hard enough. And then there’s a more extreme view on the other side, which is that law is only politics: It’s just judges being politicians, and maybe they’re phrasing their reasoning using legal language, but it’s really the same thing and we shouldn’t be misled by that.

Most people who think about law and study the court carefully think it’s something in between those two. There are instances where we can all read the same statute and think it means the same thing, and there is a correct legal answer. But then as the stakes get higher and we’re talking about constitutional law, which often involves the interpretation of extremely vague texts that were written more than 200 years ago, there’s much less common ground and consensus. There’s a danger that in those cases, what the court does ends up looking basically like pure politics—and I think to some degree, that’s true.

If you believe that, though, it becomes increasingly hard to understand why the Supreme Court should be allowed to say any laws are unconstitutional. Why should the Supreme Court get to declare a law unconstitutional if we think that what the court is doing is just making a political judgment? We need an answer to this question, and how you answer it may imply how much power you think the court should have.

Stanton: In terms of legitimacy, what is the looming threat here—not just for the court, but on a big-picture scale? Because on one level, this is about the courts and politics, but on a much higher level, it’s about the rule of law and basic democracy.

Epps: Yeah. There is a very serious problem with letting the court decide contentious social issues in a world where the justices themselves seem to be increasingly likely to be appointed by presidents who didn’t win the popular vote. There’s a number of serious democratic deficits with the presidential election process, and then with the judicial confirmation process, where the Senate is disproportionately skewed towards smaller states. You end up with an institution that is, as we say, counter-majoritarian.

Now, to some degree, that’s one of the things that people say the court is supposed to do: It’s supposed to say to the majority, “Hey, don’t trample on people’s rights.” But the court’s claim to be able to do that, I think, is increasingly tenuous when there are fewer and fewer people who are actually responsible for those justices being on the court, indirectly.

Stanton: Let’s talk through some of the different ideas for reforming the Supreme Court. First, when you think through these proposals, what are the criteria you use when deciding whether a reform could be successful?

Epps: A few things come into play. One is practicality: How could this be implemented? Can it be done through an ordinary statute, or does it require a constitutional amendment? It’s very, very hard to amend the Constitution, and it seems increasingly unlikely that we’re going to see that happen. So you need something that’s feasible. And then there’s a spectrum: Some things seem very feasible, some seem impossible, and some we’re not really sure about, but may be worth a shot.

There’s other criteria you might consider, too, like “neutrality.” Any Supreme Court structural reform is almost certainly going to create immediate short-term winners and losers. There are some reforms that you can only really think of as just one side taking naked partisan advantage because it can, versus reforms that are trying to actually divvy up the spoils in a somewhat fair way. The term-limits idea, that’s a neutral reform over the long run, in the sense that it should benefit both parties equally to the extent that they win presidential elections equally. Then there are other reforms that are just one side taking advantage. I think court expansion is harder to justify in purely neutral terms. That’s not to say it can’t be justified, it seems stable — in the sense that if one side packs the court to 11 or 13 justices, it would create a precedent where the other side would feel comfortable doing the same when they had the opportunity.

Stanton: You mentioned term limits. I think people are, broadly speaking, familiar with this idea for elected officials. But when it comes to Supreme Court justices, what exactly are we looking at?

Epps: There are a number of proposals that have been thrown out there, but the 18-year term limit is the most popular one. It was first proposed by Philip Oliver in the 1980s, and then resurrected in the mid 2000s.

People have largely coalesced around this idea of the 18-year term limit, with openings every two years. It would regularize appointments, and 18 years is a good amount of time, but not a life term. You’d have a certain amount of people cycling through the court. If you’re president for two terms, you get to make four appointments; if one party controls the White House for three terms, they get to make six, and so forth. There’s a lot to like about that compared to the present system, where it’s just random coincidence when a court seat opens up. It would at least make the membership of the court track more closely with the results of elections.

Then there are a bunch of really hard questions. Do you make it retroactive such that it applies to all sitting justices, or does it only apply to people appointed after the reform goes into place? How do you roll it out? And that’s putting aside all the legal questions about whether you could do it through a statute instead of a constitutional amendment. But it’s hard to say that would be a worse system than our present one.

Stanton: Court-packing is another big idea being discussed. I think people know what it is. From your perspective, why does it fall short as an idea for reform?

Epps: When it was tried in the 20th century—when the Supreme Court was being hostile to Franklin Roosevelt’s New Deal agenda—it didn’t command public support, and it ultimately failed. Since then, people have sort of recognized a soft constitutional norm against court-packing, even though it’s permissible. There are people who have tried to make the argument that court-packing is unconstitutional. But it’s a very hard argument to make, because the Constitution doesn’t set the size of the Supreme Court, and the court went up and down in the number of justices at various points in American history. The ability to expand the size of the court is one democratic check, ultimately, on a court that doesn’t have a lot of them because its members serve for life.

The most common argument used against it is that the public won’t support it because it looks unfair and it will create a cycle where the parties go back and forth packing the court. Democrats will pack to 13 justices, Republicans will pack to 17, and before you know it, we’ve got 100 justices on the court — which would be a great employment opportunity for lawyers, but not necessarily great for anybody else.

Stanton: So, as you said, part of the basic argument against court-packing is that it goes against basic longstanding norms; it would be changing the size of the court for political or ideological reasons in order to reverse-engineer the desired outcome.

Epps: Yeah.

Stanton: If that’s the case, then when Senate Majority Leader Mitch McConnell decided not to give President Obama’s nominee, Merrick Garland, an up-or-down vote after Justice Scalia died — was that just court-packing by subtraction? In essence, it shrunk the court to eight justices for a year until President Trump nominated Neil Gorsuch. And if it was court-packing, are we already in that ever-escalating spiral that you described?

Epps: This is the thing that’s so frustrating about these conversations. I’m more liberal and I identify with the Democrats, but I have a lot of friends on the other side. And whenever you get these conversations — What are the norms? What was an escalation, and what was response? — it just goes nowhere. I start talking about the ways Mitch McConnell and his predecessors escalated and broke norms, and they start talking about all the things Democrats have done.

I personally think that it was pretty extraordinary to refuse to even have a hearing after Obama nominated Garland. And that alone would have provided a fairly good justification for further escalation, because if we’re going to have a system where it just depends on who happens to be president when a nomination opens, we should at least just let the presidents fill the nominations that open when they’re president.

Ultimately, it really shows just how broken the system is. The fate of the Supreme Court and the fate of people’s rights shouldn’t depend on when an 80-year-old person dies. Nothing important should turn on whether some old person chooses to retire or keep working until they’re in their 90s. It’s a crazy way to run a country.

Stanton: Do you think the idea of an age cap on Supreme Court justices makes any sense?

Epps: It has a lot to recommend it. I don’t think there are good arguments for people staying on the court until they’re 87 or 90. Justices tend to stay on a very long time, and in recent years, it’s pretty unusual for them to retire before their 80s — Justice Souter did, but he’s the exception — because it’s a good job. They enjoy it. It’s a lot of power. I’m not saying any of them are bad people, but it’s very hard to give up those reins. And it’s very hard not to see yourself as indispensable once you’re there.

An age limit alone would be a good reform, but I think it might create some incentive for further gamesmanship in appointing younger and younger people. I’d like to see both an age cap and an age floor, too, because I don’t want 35-year-olds being appointed to life terms. Republicans recently appointed some very, very young judges to the lower federal courts — people in their mid-30s to the appellate courts, and people in their early 30s to district courts. That’s really only explicable by a desire to entrench these judges for a very, very long time. I find it very troubling.

Stanton: Getting back to some of the other reform ideas: Panels of judges. What would that look like?

Epps: The idea would be that you’d have a bigger Supreme Court that would then hear cases from a subset of the membership. The version of that proposal that Ganesh Sitaraman and I put forward was a lottery. It basically turned the entire lower federal appellate court judges into Supreme Court associate justices, all the roughly 150, 200 judges in those courts. And they would come up and hear cases for a week or two, then go back down. You wouldn’t see these situations where there are really intense battles about one seat tipping the balance of the court.

To make that system work, there are some other things you’d have to do. One is some kind of supermajority requirement for certain kinds of rulings so that a bare majority is not enough to, say, declare the Affordable Care Act unconstitutional. And then you could also accompany that with some kind of partisan-balance requirement, like a limit on any given panel to the number of justices appointed by a president belonging to any one political party. That would be a way to directly prevent the kind of wild ideological swings between panels.

It’s a reform that would make each individual justice a lot less important, less powerful, and really remove some of this cult of personality around justices, which we certainly saw in the case of Justice Ginsburg.

Stanton: Do you think that was a problem when it came to Justice Ginsburg: the cult of personality?

Epps: People can have whoever they want as a hero, and there’s a lot to admire about Justice Ginsburg. To the extent that it created some kind of aura that she was absolutely indispensable, I think it could have been problematic.

Given her values, Justice Ginsburg made, I think, a pretty serious error in judgment in not stopping stepping down in 2013 or 2014 when Democrats had the Senate and Obama was president. It was anything but certain, especially given her health history, that there was going be a better opportunity to appoint a Democratic replacement for her. But she chose to stay on. She made a gamble, and that gamble really didn’t pay off.

Honestly, at the time, a lot of us saw that coming. Back in 2013, she’d had cancer multiple times, and, you know, people don’t live forever. These are jobs that I just don’t think people should be doing into their late 80s. That’s not to say she wasn’t doing a good job. But surely there are other people in America who also would have done an excellent job.

Stanton: One of the proposals that has gained some purchase in recent days is “jurisdiction stripping,” which, from my layperson’s point of view, would seem to undo the premise of judicial review. Can you walk me through that idea?

Epps: Yeah, absolutely. The people most prominently advancing this right now are Sam Moyne at Yale and Ryan Doerfler at the University of Chicago. The idea is that the Constitution says Congress has the ability to make exceptions in the Supreme Court’s jurisdiction. It is at least in theory possible to imagine a statute that says, “the Supreme Court shall have no jurisdiction to hear cases about X, Y or Z.” And going further, you can imagine saying the federal courts generally shall have no jurisdiction to hear cases about X,Y and Z, which would mean that if you went to court on one of those matters, the court would be powerless and say, “We’re not allowed to rule on that stuff.” It’s controversial, and the degree to which you could take all federal judicial review off the table is very controversial.

One thing important to stress about this is that how you feel about it may depend a lot about what you see as the threat of the court. If you think the threat is that the court isn’t going to recognize the rights that you care about, then jurisdiction-stripping is not the solution.

In recent decades, a lot of our conversations about the Supreme Court have really been proxy battles about abortion, are whether we are going to have legalized abortion or not. But I think that people maybe have started to see a different threat: that the courts will interfere with legislation and try to strike down progressive legislation. If you look at most of the things that progressives want, you can come up with a facially plausible constitutional theory for why the federal government can’t do that. And I think the fear is that the court is going to just start striking down things left and right.

Stanton: In your piece for the Yale Law Review last year, you had two reform proposals of your own. One is the “lottery court,” which you outlined a bit earlier. Your other proposal is the so-called “Balanced Bench,” and that one is a little more complicated.

Epps: It is, although I think the idea can be explained relatively simply. Lots of disputes get arbitrated. It’s an informal system, and the way it often works is that each side gets to pick one of the arbitrators, and then the two arbitrators pick some third “neutral” arbitrator, and the three of them go and decide the dispute.

The germ of this idea is applying that model to the Supreme Court. You’d have a Supreme Court in which five seats would be reserved for justices appointed by Democratic presidents, another five would be reserved for justices appointed by Republican presidents, and then those justices collectively would have to agree unanimously or nearly unanimously on another five justices who would be selected among judges from the lower federal courts—the idea being that they would look to select judges that had a reputation for moderation and fairness, not partisans.

Stanton: Are you concerned at all that the court would then have a moderate bias?

Epps: I think that’s a quality. That’s better than a court that is going to be highly polarized and extreme. We have to compare these things to the available alternatives. And compared to the system that we may be about to live in — where you’re going to have an extremely conservative court, and where Chief Justice Roberts would not be in the top five most conservative justices on the court. He, right now, is at the very center of the court in ideology, but it’s extremely likely that whoever replaces Justice Ginsburg will be to Justice Roberts’ right. He would no longer be the median justice. So, which justice will then have the most power? Probably Justice Kavanaugh, but maybe occasionally Justice Gorsuch. I don’t think that court is really representative of American values, at least judged by where public opinion is. The Balanced Bench would be an improvement over that status quo, at least from my perspective.

Stanton: Right now, we’re in a situation where, when it comes to populating the courts, if one side is willing to flout norms in order to entrench power, the other side is in a bit of a trap: Either unilaterally disarm and protect the norms, or compete for power and obliterate those norms. The struggle in politics requires that multiple people agree to play by the same set of rules. Otherwise, it’s a rigged game, and it makes it harder for the courts that result from that process to have a sense of legitimacy. So, from the perspective of the court, how do you restore a sense of legitimacy?

Epps: It’s extremely challenging. And you really put your finger on what makes this so difficult. I don’t think that there’s a clear, good option. Unilateral disarmament is unlikely to be a good option. And even here, both sides are going to disagree on what counts as disarmament.

A system is not going to work if everybody is just doing everything that they’re not forbidden from doing. There should be some sense of fairness and reciprocity, some concern whether if I do this now, this is going to happen to me down the line. Richard Primus said something a few years ago, that right now, both sides, particularly Republicans, are acting in a way that they don’t expect the other side to ever be back in power. And that’s very frightening. I don’t know how to get back there. I think the only way to build a new norm is to say, “We need to scrap the system. This isn’t working.”

Stanton: From having worked there, is it your sense that people inside the Supreme Court establishment feel that there’s a need for reform? Or is this something that they see as being imposed on them?

Epps: You know, I certainly didn’t get the feeling that people at the court in 2009 and 2010 thought that there was anything wrong with the system — as well they should: It’s great for them. But a lot has changed in 10 years, and I’d like to think that maybe some of the justices recognize that the system is increasingly under threat.

Chief Justice Roberts has been doing his best to try to hold the center together. He seems to really care about the institution. I don’t think he wants it to be changed, but he strikes me as someone who seems to be aware that the court is on thin ice. I don’t know if the other Republican-appointed justices recognize the extent of the problem. But they may soon.

Stanton: Final question: What is your outlook right now for the Supreme Court, both in terms of the fight over legitimacy and also about the chances that reform will actually happen?

Epps: The court is an extremely resilient institution. There have been many times when it has seemed like its legitimacy was under threat, and then it bounced back very quickly. That happened under Bush v. Gore. And even recently, it was at a low after the Kavanaugh nomination. But since then, it’s bounced back a bit. It certainly didn’t hurt that Chief Justice Roberts veered a little bit to the left and gave some victories to the left that people didn’t expect — ruled in favor of abortion rights, and so on. And I sort of thought at that moment, OK, maybe Roberts has smartly avoided the crisis by doing just enough to keep the left from complaining. But I think it’s quite likely that whoever the next justice is will push the court far enough to the right that that may stop happening.

I am worried about what’s going to happen. I’m worried about having a Supreme Court that doesn’t share my values on a lot of questions. On the other hand, I am, in some ways, excited about the possibility that people are going to wake up and start seeing what’s wrong with letting these folks in robes rule our lives. There’s just nothing that makes smart lawyers who have backgrounds that look sort of like mine particularly qualified to rule on a bunch of the questions that the court rules on, which are really questions of morality and philosophy. I am not more equipped to rule on those questions than my fellow citizens are. And I don’t think the justices are, either.

If people can keep paying attention, there’s reason to hope we will really start to rethink this institution.