Thursday, September 24, 2020


Students Create Supreme Court Reform Website

SCOTUS

With Supreme Court reform now at the top of the 2020 election debate due to the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, a new website created by several Yale Law students provides a way to learn about the history of the High Court and browse a menu of detailed reform options to become more informed on the topic.

The website is the product of a unique seminar developed last year that dove deep into the topic under the direction of Henry R. Luce Professor of Jurisprudence Samuel Moyn.

“A group of us approached Professor Moyn in the fall of 2018 about holding the seminar,” said Dan Stein ’21. “We realized there was actually a long history of Supreme Court reforms that had been either implemented or considered throughout American history. We wanted to make that history and the legal scholarship on reform accessible for anyone interested in the issue.”

The students created teams to research different reforms and met once a week to share what they found.

“Their basic question was: what are the imaginable institutional reforms to the Supreme Court, and how can we compare and contrast those reforms with each other?” explained Moyn, who oversaw this work and began to explore this topic in his scholarship more deeply as a result. “The students organized the course, hosted many eminent guests from inside and outside the school, and produced legal analysis that proved foundational to making their website.”

After the seminar, the group decided to create a user-friendly website aimed at ordinary citizens that lays out the facts about reform and a menu of options that showcase their research. It even offers a quiz to help visitors decide which reforms might appeal to them.

“Not only were the students responsible for the content, but they brought the highest technical and production values to mounting it,” said Moyn.

The facts on the website outline how the size of the Supreme Court has changed seven times since its founding and highlights how the Constitution leaves many of the decisions about the High Court to Congress. It lists out nine options that document the varying reform avenues that are applicable, including adding seats, balancing the bench, bipartisan merit selection, jurisdiction stripping, legislative override, a lottery system, partisan balance, term limits, and voting rules. In addition, the site provides a recommended syllabus of readings on the topic.

As a result of this seminar, Moyn recently coauthored an article in the California Law Review on reform, which has generated frequent attention in the media. He credited the students for providing the inspiration for this work. “I would never have embarked on this scholarship without the impetus and stimulus the students provided in staging the course,” Moyn said.

His scholarship argues that the aim of Supreme Court reform should not be to make the court less ideological, but to make it less powerful through a series of disempowering reforms.

“Remedies like ‘court-packing’ alter the personnel on the Supreme Court, but do not affect its institutional power,” explained Moyn. “That means that outcomes depend on how the personnel use that power, and invites repetitive personnel adjustment —a risk of tit-for-tat court packing or other personnel adjustment every time Congress changes hands.”

Reforming the court by changing its jurisdiction, or inviting it to reach a supermajority of justices to invalidate federal legislation on constitutional grounds, would instead shift authority to the political branches and away from the court itself, no matter who sits on it.

“That shift would make our nomination fights less intense, and provide less reason to engage in spiraling warfare over the personnel on the Supreme Court in general,” said Moyn.

Stein and Moyn said despite the polarization that surrounds the Supreme Court in the national dialogue, research showed there were some reforms that have had bipartisan appeal.

“We found that Supreme Court reform has been considered by both parties throughout American history,” said Stein. “Also, as recently as 2018, current Supreme Court justices nominated by presidents of both parties joined together in a ruling that affirmed the constitutionality of one of the reform options: changing the Court's jurisdiction.”

“Conservatives have been calling for Supreme Court reform for much of the period since World War II — and my position is that the disempowering reforms, which merely transfer power to the political branches, are meant to be as appealing to all Americans who believe in democratic self-determination,” added Moyn.

With the debate likely to carry on in the weeks and months to come, the students involved in this project believe now is the time to begin to ask important questions about what citizens want from the nation’s top court.

“In our current moment, we think it is worth considering: How much power do we want judges to have, compared to elected representatives? Should we be concerned when the Court decides a case with only the votes of justices nominated by one party? How well does the Senate, which confirms justices, represent our country?”

To explore the website, visit: https://www.scotusreform.com/