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Cardozo Law Review

Abstract

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I Cut, You Choose” procedure for ensuring fair division—only here, it manifests as “I Choose, You Decide.” This proposal, rather than attempting to correct any supposed institutional deficiency that exacerbates the effects of partisanship, instead seeks to create a structure of checks and balances within the judicial branch itself by pitting partisanship against partisanship. Like personnel reforms, it reduces the efficacy of strategic or escalating partisan leveraging of the appointment and confirmation powers, but without requiring derogation from the principle of life tenure. And like disempowering reforms, it lowers the stakes of Supreme Court policymaking by creating conditions under which the Court itself will retreat from policymaking in areas of partisan polarization, but without derogating from the principle of judicial review.

Keywords

Courts, Judiciary Branch, Politics (General), Law and Race, Supreme Court of the United States, Constitutional Law, Elections and Voting Law

Disciplines

Constitutional Law | Courts | Election Law | Law | Law and Politics | Law and Race | Supreme Court of the United States

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