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  • Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019), available at SSRN.
  • Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019), available at SSRN.

The Supreme Court is broken, or so holds an emerging consensus. From the Senate’s refusal to consider Judge Merrick Garland’s 2016 nomination to the Court to the contentious 2018 confirmation of Justice Brett Kavanaugh to a string of 5-4 decisions in politically salient cases, many entailing overruling of long-standing precedent and dividing along the party of the appointing President. All suggest an institution facing deep questions of legitimacy. That apparent consensus yields numerous suggestions to reform, and thus save, the Court.

One idea gaining traction in academic and political circles, across the ideological spectrum, entails eliminating life tenure in favor of some form of 18-year term limits on the Justices. Structures, details, and implementation vary, but the common idea is that a Justice would serve as part of the active nine-member Court for 18 years and a new Justice would be appointed every two years. Supporters believe this will reduce the political intensity surrounding any appointment, eliminate the fortuity of how many appointments a President gets and when, remove the incentive to appoint ever-younger Justices, and perhaps remove the Court as a campaign issue. Two forthcoming papers question this emerging wisdom. Term Limits and Turmoil: Roe v. Wade’s Whiplash empirically exposes the doctrinal costs of term limits; How to Save the Supreme Court proposes alternatives that avoid those doctrinal costs.

In Term Limits and Turmoil, Christopher Sundby and Suzanna Sherry show what might have happened to the constitutional right to abortion recognized in Roe v. Wade if the Court’s membership changed every two years from 1973 (when Roe was decided) until 2019 (when President Trump would make the second appointment of his first term). Assuming a case allowing for reconsideration of Roe every two years (something the authors acknowledge is unlikely), the paper models seven scenarios based on three factors that might influence judges: the loyalty of a Justice to the nominating President’s political values, a Justice’s deference to precedent, and the moderating influence of the Senate confirming the nomination. Computer simulations of judicial votes determine the odds of prevailing precedent being overruled in a run of 10,000 cases. Their basic findings:

  • Where loyalty to the political values of the appointing President is the prevailing value, it is likely that controlling precedent would have been overruled three times: Roe would have been overruled in 1985, the case overruling Roe would have been overruled (reinstating constitutional protection for abortion) in 2009, and that case would have been overruled (eliminating constitutional protection for abortion) in 2017. Of course, that last overruling likely would not occur had Hillary Clinton won the 2016 presidential election and made the 2017 appointment. The triple reverse occurred whether the Justices were weakly, strongly, or moderately loyal; the intensity of loyalty increased the odds of overruling.
  • Deference to stare decisis, whether strong or weak, brings some doctrinal stability, with one likely overruling of Roe itself around 1989, but no subsequent overruling of that decision. But under a weak-deference model, the likelihood of overruling was within 10 points of 50 % (as Sundby and Sherry put it, within 10 points of a coin flip) at several points during the 45-year period. And, again, the constitutional right likely would have been reinstated by 2019 had Clinton prevailed in 2016.
  • High Senate influence, with and without the filibuster, similarly produces one likely overruling of Roe itself, tempering wild doctrinal swings.

Justices and commentators acknowledge that the Court changes with every new member, such that term limits create a new and different Court every two years. Doctrinal instability is an obvious consequence. The instability may not happen in the way this study suggests—it would take longer for cases to wind their way through the lower courts and to the Supreme Court to reconsider precedent. Sundby and Sherry identify an additional unknown—how lower courts and political branches will respond to doctrinal change, knowing that another switch may be on the horizon. Perhaps lower courts will ignore the new overruling precedent; perhaps anti-abortion states will continue to enact and enforce abortion bans, confident that a doctrinal turn is forthcoming. But this fascinating study offers a specific picture of the potential jurisprudential switchbacks.

Daniel Epps and Ganesh Sitaraman similarly recognize doctrinal instability as one of several defects in term limits. They offer two independent alternatives, each working not by shortening or limiting the term for which a Justice serves, but by expanding who is a Justice and what Justices comprise the Court for a given case or term. Three candidates for the Democratic presidential nomination—Beto O’Rourke, Pete Buttigieg, and Bernie Sanders—have expressed support for one or the other idea.

The first proposal is the “Supreme Court Lottery.” Every judge appointed to the court of appeals also would serve as an Associate Justice of the Supreme Court, functionally making the Court a body of 180 members. Cases would be heard by a randomly selected panel of nine Justices sitting for two weeks; judges would prepare for arguments at their home courts, travel to Washington for arguments, then return home to draft opinions. The next set of cases would be heard by a different randomly selected panel of nine. A judgment declaring a federal statute (although not a state statute or federal regulation) constitutionally invalid would require at least a 7-2 vote, and the Court would have mandatory jurisdiction if a lower-court declared a federal statute (although not a state statute or federal regulation) invalid. The nine Justices sitting during a two-week period also select cases for review, although granted cases would be heard by a different randomly selected panel. Epps and Sitaraman identify several benefits to this structure. It decreases ideological partisanship by limiting the power of one judge to pursue an idiosyncratic or ideological agenda in case selection or opinion writing over a long period. Case selection and resolution occur behind a “veil of ignorance,” as one judge does not know what cases she will hear (because they were selected by a different nine-person panel) or who will hear the cases she selects (because they will be heard by a different nine-person panel). And the seven-Justice supermajority requirement guards against radical doctrinal swings and may have a moderating effect on individual judges in drafting opinions, producing more “minimalist” doctrine.

Their second proposal is the “Balanced Bench.” It would establish a Court of ten Justices, five affiliated with each major political party. Those ten would select five additional lower-court judges to serve on the Court for a non-renewable one-year term; they must select the additional five unanimously (or at least by supermajority), at the risk of a loss of a quorum and inability to hear cases that Term. The system is analogous to civil arbitration, in which each side selects one arbitrator favorable to its side and the two arbitrators agree on a third “neutral” for the panel. This echoes previous proposals for making the Court explicitly partisan and politically balanced, allowing the institution to match the public perception. But by adding five neutral Justices agreed upon by both “sides” of the Court, it restores a modicum of non-partisanship, as big cases cannot be decided by simple majorities along party lines.

Epps and Sitaraman address and rebut a host of constitutional objections to both proposals. These include concerns about limiting the presidential appointment power, vesting appointing authority in the Justices themselves, imposing a supermajority voting rule on the Court, and having judges serve on courts other than the ones to which they were appointed. Both proposals dig at structural questions of what constitutes a “court” and what “one supreme Court” requires under Article III—Epps and Sitaraman insist a tribunal qualifies as one Court even if its membership is non-permanent or rotating, pointing for support to the Foreign Intelligence Surveillance (FISA) Court and to the original Circuit Courts under the Judiciary Act of 1789. The most serious objection involves partisan-balance requirements, which limit the President’s appointment discretion. They respond that Presidents of both parties have accepted partisan-balance rules in administrative agencies and a judicial-nominations commission for the District of Columbia courts, so might accede to a similar settlement as to the Supreme Court. Congress also could achieve partisan balance through a Senate rule refusing to confirm any nominee not from the proper party; this solution does not limit the President’s power to nominate anyone he wants, but he knows that only a member of the proper party will be confirmed.

Both articles achieve what the best legal scholarship should—offering practical guidance to those charged with making and implementing legal choices. Facing an uncertain political situation about the present and future of the Supreme Court, the articles expose what is constitutionally possible and practically workable. What those charged with implementing structural choices do with this information is up to them.

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Howard M. Wasserman, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits, JOTWELL (June 5th, 2019)(reviewing ; Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019); Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019)).