Aaron Dozeman is a law clerk to the Honorable Joan H. Lefkow on the United States District Court for the Northern District of Illinois. Andrew Moshirnia is an Associate Professor and Director of Education at Monash University.
A key feature of the United States Supreme Court is that it has a small group of justices who, with limited exceptions, vote on every case before it. With lifetime appointments for those justices set by the Constitution—a marked contrast to state approaches to the judiciary—the composition of the entire Court traditionally changes slowly, and thus the members’ views and the Court’s likely outcomes become predictable. This type of predictability of the Court is too often mistaken by academics and lay-observers alike as stability of the law itself or precedent generally. Nothing could be further from the truth—a static Court erects fragile, idiosyncratic precedent prone to collapse at the tectonic shift caused by a justice’s retirement or demise. Muttering the words “stare decisis” will neither magically buttress the law nor restore stability. We have already witnessed crumbling precedent, and it is fairly obvious the landslide has only just begun. This piece sets out the problems of a predictable Court and offers a solution of four rotating justices grounded in the random-selection approach employed at nearly every other level of the federal judiciary.
I. A Monocultural Court Yields Fragile Precedent
The causes and consequences of a predictable and thus gameable Court are no secret. The views of the justices are well known, and political actors assume those views (and for the most part, the composition of the Court) will remain stable through a justice’s time on the bench. The Supreme Court bar knows these views and therefore tailors its controversies and arguments to them, creating an echo chamber. The self-sorted voting blocs of the Court narrow the scope of argument even further, as a sole swing justice or swing bloc of justices may become paramount. When the composition of the Court finally changes, the monocultural precedent becomes exceptionally vulnerable. A new justice or bloc of justices, chosen through the political process for a particular hostility to or sympathy for a line of precedent, can change everything.
The engineered predictability of the Court begins with the appointment process itself, starting with a nomination of a candidate by the President and confirmation by the Senate. Naturally, the President’s nominee will embody his or her value-preferences and ideologies, and will have obtained accepted professional qualifications. Limitations on the president’s nominee choices come down to the Senate’s composition and political obstacles. Although this process has remained unchanged since the nation’s founding, the tactics employed today by the political branches have become overtly political, undermining the perception that the Court’s members are insulated from political loyalties. As the justices sit for life, the clear hope by political actors in the majority is that the elevated justice will be unwavering in his or her views and leave the bench, either by passing or strategically retiring, during a time when he or she can be replaced by a like-minded jurist.
In a related vein, the entrenchment of ideological voting blocs on the Court has shaped the Supreme Court bar. This group includes repeat attorneys who craft arguments that are tailored to the known ideologies of the Court’s members. The consequence of all this is monocultural ossification: an echo chamber of attorneys who share similar backgrounds and perspectives, performing before the same, well-studied audience of nine.
While judicial monoculture with its attendant fears of bias is a concern generally, the ideological composition of the Supreme Court can elevate a single so-called “swing justice,” the justice who decides between two evenly split blocs as a pivotal decision maker. The result is decades of idiosyncratic and fragile precedent. An ideologically divided Court elevating a sole decision maker and the existence of an enabling Supreme Court bar are antithetical to the values of an appellate system.
Through courts of review, the law is developed and uniformity achieved through arguments that have broad appeal. Winning arguments strike accord among multiple appellate judges on the same panel, which can in turn be persuasive to fellow appellate courts. On a macro-level, issues percolate first through the ninety-four district courts across thirteen judicial circuits and then arrive at an appellate court. On a micro-level, cases start by random assignment to a district court judge, and then proceed on appeal to a randomly assigned three-judge panel in a circuit court. That panel will issue a written decision setting out its reasoning, and judges may concur in the decision, concur with a separate written decision, or issue a dissent. If a party disagrees with the panel decision, the party can request a rehearing from the same panel or, if certain grounds are met, a rehearing in front of all active (non-senior status) judges in the circuit, known as rehearing en banc. Thus, both on a macro- and micro-level, no party can fully anticipate the assigned judge or judges who will review a case, except in the increasingly rare en banc proceeding. And this is not unique to the United States. In Australia, for example, the High Court has seven judges, but the majority of cases are heard by a panel of three or five judges.
Moreover, in those occasions where “judge shopping” or even “forum shopping” occur—that is, attempts by litigants to find a favorable audience to their position—there is the potential for systemic checks, through either judicial or legislative intervention. Not to mention it is generally frowned upon by the legal community. Accordingly, appellant litigants lead with arguments that have the broadest possible appeal, in order to account for the likely ideologies of the judges who may hear their cases. These structural checks are not without their loopholes and limitations. For example, the GOP has effectively circumvented such checks on judge shopping at the district level by repeatedly bringing suit in smaller districts in Texas. In Amarillo, Texas, Trump appointee Judge Matt Kacsmaryk presides over 95% of the civil cases brought there. But even these predictably anti-Biden-administration outcomes may be appealed to a random panel. Individually tailored arguments, targeting a specific judge’s pet theories or preferences, are typically not feasible.
But this is not true of the Supreme Court. The justices and their particular ideologies are well known. Indeed, their ideologies underpin why these individuals were nominated and confirmed for the position in the first place. Former Supreme Court law clerks become talismanic Supreme Court advisors to future litigants. Practitioners craft arguments for the justices’ idiosyncratic views, leading to idiosyncratic precedent. Not only that, attorneys know how to choose “perfect plaintiffs,” who are litigants whose cases “assimilate to norms that the Justices understand” and appeal to the justices’ idiosyncratic viewpoints. Thus, the reverse-engineering of cases in litigant selection, substance, and argumentation for a particular voting bloc is possible at the Supreme Court, in contrast to circuit courts.
This problem is further exacerbated in cases where the parties are vying for the favor of one single justice. For example, Justice Anthony Kennedy was responsible for developing equal protection jurisprudence on gay rights over several decisions over several decades, in cases like Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013). His precedent culminated in Obergefell v. Hodges in 2015, in which the majority opinion that he authored held that the Fourteenth Amendment to the United States Constitution recognizes a national right to same-sex marriage. By the time Obergefell came before the Court, not only were Justice Kennedy’s views on the issue well known, but he was also the sole swing vote between two four-member blocs.
This individual-dependent process calls into question precedent that hinges on the views of a single justice or small bloc of justices. Now that Justice Kennedy is no longer on the Court, is there now an opportunity to overturn precedent that he authored? Other courts and legal actors certainly seem to think so, especially with respect to abortion. Since Justice Kennedy’s departure and the death of Justice Ginsburg, a number of states have passed increasingly restrictive laws on abortion access, anticipating an imminent ruling from the Supreme Court that would overrule Roe v. Wade. Several circuits have delayed acting on abortion-related challenges in similar anticipation of a precedent-changing decision. The vitality of the Kennedian canon depends on how committed the current justices are to precedent. And in short order, the Supreme Court has answered this question with a resounding: not very. In fact, litigants are pushing and the Court is revisiting several polarizing issues—from religion, to gun rights, to race. Yes, under a doctrine called stare decisis, precedent is abandoned only under the most narrow grounds and rare circumstances. It is a longstanding principle that gives stability and predictability to law. But it has not been a roadblock to preferred outcomes: the Court is poised to overrule Roe in the recently-argued Dobbs v. Jackson Women’s Health Organization case, a challenge to Mississippi’s fifteen-week abortion ban. Further, the Court has arguably already overruled Roe in practice by refusing to stay aspects of SB 8, Texas’s novel six-week abortion ban in Whole Women’s Health v. Jackson.
Thus, the Supreme Court, by its very nature, invites gaming at all levels. The permanence and constancy of a justice (absent a rare recusal) influence the arguments of litigants, and has occasioned antidemocratic stalling and constitutional crisis in the political branches. The prospect that a candidate will nominate jurists that protect or dismantle fragile precedent regarding major issues (like abortion) has actively influenced the success of presidential campaigns.
A mature democracy should not devolve into such spectacle. Such tactics infect the judiciary with actual and perceptible bias, undermining the neutrality of the courts and tarnishing their reputation of political independence. But finger-wagging and warnings seem to have no effect. It is not enough to shame game-playing parties and ask them to forego the game for the good of the Republic and common law. It is clear that the problems of targeted arguments and manufactured cases by litigants, strategic retirements by justices, and judicial death-watches by political actors are here to stay, absent significant intervention. The system must be reformed to prevent this ruinous gamesmanship.
II. Adding Four Randomly Selected Circuit Single-Term Justices Will Break the Monocultural Court and the Influence of the Echo Chamber
The remedy for the current rut is to break the monocultural nature of the Court. Our proposed solution is to add four randomly selected circuit judges from four different circuits to sit by designation for a single term as justices alongside the permanent nine, totaling thirteen in all. The advantages of the approach are both practical (in line with other judicial practice, able to be achieved without constitutional amendment) and principled (greater diversity, greater commitment to federalism).
The Court’s predictability, which is not the same as stability, is both the cause and consequence of monocultural ossification and political gamesmanship. Although counterintuitive, a little randomness on the Court would give its precedent more stability. The addition of four randomly selected justices is a modest change. Each designated justice would be elevated from a different circuit court for a single term to hear all cases therein. These four selected justices will be announced at the start of a Court term, preferably after briefing on most cases has completed, so that litigants will be unable to tailor arguments to idiosyncratic preferences. Grounded in the spirit of the percolating circuit courts, the Court’s thirteen members will mirror the thirteen circuits. The addition of four designated justices will not displace the roles of the nine sitting justices. After all, notwithstanding voting bloc and idiosyncratic precedent, permanent justices do bring stability in other important respects. This does not rule out, however, the possibility that the balance between permanent and term justices could change with further amendments to the Judiciary Act as permanent justices leave the bench. We leave that question for another day.
This solution has numerous advantages. Not least of these is the fact that the solution is consistent with previous practice: Circuit panel and district judge assignments (achieved through random selection) are not known to litigants before sittings, except in the rare en banc case. This approach incentivizes broad consensus arguments, rather than the idiosyncratic or voting-bloc targeted arguments that are ubiquitous today. Arguments with broader appeal are likely to garner wider consensus among the panel, the legal community, and the nation writ large. The Court’s adoption of broad consensus positions would further weaken the perception that there are conservative and liberal ways to decide legal issues.
The approach also comports with the now common practice of elevating circuit judges to justices. Since 1970, only three members of the Court lacked prior judicial experience, and since 1994, at least eight of the nine sitting justices have been elevated from the circuit courts (with a brief period from 2006 to 2010 where all nine justices were previously circuit court judges). On the current Court, only Justice Kagan has never held a circuit judgeship. On the whole, adding circuit court judges to a panel will add the type of judge typically considered a prime candidate for nomination.
The inclusion of rotating circuit judges would also inject much needed diversity into the Court. While the Court’s lack of racial diversity has attracted significant attention, less has been written about the Court’s dearth of educational and geographic diversity. The Court and its law clerks in the last half century have come from a small handful of educational institutions. Since 1970, only three justices did not earn a law degree from Harvard, Yale, or Stanford. Perhaps most shockingly, no justice in the last fifty years has graduated from a public university at any level: exactly none of the forty-three degrees (bachelor’s, master’s, juris doctor, or master of laws) held by justices from Justice Blackmun onward were awarded by a public institution. The information in the chart below is compiled from a number of sources, including biographies of current and past Supreme Court Justices.
|Justice||Law School||Undergraduate Institution||Other Degrees||Public School Degree||HYS Law Degree||Year Sworn In|
|Powell||Harvard (LLM), Washington & Lee (JD)||Washington & Lee||No||Yes||1972|
|Rehnquist||Stanford||Stanford||MA (Harvard), MA (Stanford)||No||Yes||1972|
|Stevens||Northwestern||Univ. of Chicago||No||No||1975|
|Ginsburg||Columbia* (transferred from Harvard)||Cornell||No||No||1993|
|Barrett||Notre Dame||Rhodes College||No||No||2020|
While Ivy-League degrees are prevalent at the circuit level, the educational landscape is not monolithic, especially in circuits that are viewed as less prestigious (or viewed as unlikely to yield SCOTUS prospects). For example, in the Fourth Circuit, a majority of the fourteen active judges earned at least one degree from a public institution.
Our solution would also restore the notion of a unified court system across equal circuits themselves, where currently a few marquee circuits are considered first amongst equals. The current elevation system prefers D.C. Circuit judges: Three of the current nine justices held that position and roughly eight percent of all successful Supreme Court judicial nominees have held that position. In contrast, there has never been a Supreme Court justice who previously sat for the Fourth Circuit, and the sole elevation from the Fifth Circuit occurred more than 120 years ago. Elevation to the Court is unsurprisingly dominated by individuals from the East Coast. Indeed, “more former justices were born in another country—a total of six—than were born in the entire Western region of the U.S. (five total).” Specific circuits are also far more likely to hear different types of cases. For example, extensive tribal rights cases are likely to occur in areas with numerous reservations, such as New Mexico or Oklahoma. Justice Gorsuch, who is the only Justice ever elevated from the Tenth Circuit (and just the third from the entire Mountain States region), has been praised for his deep understanding of tribal rights. The relative hierarchy of the circuits with regard to Supreme Court elevation is antithetical to federalism and undermines the institutional knowledge of the Court.
This is not to give short shrift to other important aspects of diversity, including cultural and gender diversity. With only nine spots though, the opportunity to recompose the Court to embody all axes of diversity as members leave the bench through retirement or otherwise, would take lifetimes. Moreover, nine as a sample size is too small to truly give representation to the myriad attributes we consider when selecting for diversity. Expansion of the Court and selecting circuit court judges immediately changes the dynamic, greatly increasing opportunity for representation from traditionally underrepresented groups. The circuit courts are, although still lacking in many ways, a greater well of representation, or at least provide a more varied composition than what can be accomplished with nine permanent seats.
Our approach is consistent with a unified court system and would bring the voices of that system to the Court, as compared to the current approach where nine unchanging individuals sit atop (and apart from) the work of the circuits. It also would restore a connection between the Supreme Court and the circuits, one which was largely lost when the practice of justices riding circuit was abolished in 1911. It is likely that visiting rotational justices will be more inclined to respect precedent because they have not been cultivating pet theories of constitutional jurisprudence and telegraphed those views to litigants through years of written decisions on the issues. At worst, a designated justice can introduce or highlight a legal theory in a concurrence or dissent that did not win over a majority of her colleagues.
The random draw also may lead to a greater sense of fairness and stability in the law, thereby bolstering the Court’s waning legitimacy. The decisions will be less likely to hinge on a swing justice or a particular voting bloc, and the increased sample size of a thirteen-member Court will help the Court’s outcomes typify the judicial philosophy of the nation’s judges as a whole.
Beyond the theoretical benefits, the solution has the benefit of actually being possible to implement. This would not require constitutional amendment, but could be accomplished by a change of the Judiciary Act—the foundational statute that established the federal court system. Similar to H.R. 2584, Judiciary Act of 2021, the proposed bill to add four permanent justices to the Court, the plan does not displace the nine existing sitting justices and does not pose a threat to constitutional order.
The Presidential Commission on the Supreme Court of the United States, formed to evaluate Court reform, did flag potential constitutional challenges to rotation proposals under the constitutional requirement that the “judicial Power of the United States, shall be vested in one supreme Court.” But the Commission’s concern was that there would not be a “juridical body that operates in some meaningful sense as a single court and not merely as a scattering of individual jurists occasionally called upon to resolve questions of federal law.” That the designated justices will sit an entire term satisfies that requirement, as it is possible to identify a single complement of justices for any distinct term. The “one supreme Court” argument seems trained at truncated service, such as a bi-weekly rotation scheme. Further, it should be noted that the Commission was not willing to conclude that a rotational scheme was unconstitutional.
The Commission also questioned the efficiency of wholly random courts, but those concerns are misplaced in our proposal which retains the nine sitting permanent justices. As to the Commission’s concerns that rotational justices would reduce collegiality and familiarity, in so far as the current nine justices are collegial and familiar, they will remain so. The same is true of their willingness to compromise, mutatis mutandis. The inclusion of four additional individuals is unlikely to destroy the social fabric of the sitting Court, just as visiting judges sitting by designation in other circuits have not caused chaos. Moreover, the addition of four voices (voices that will be heard throughout the whole term) is unlikely to render the decision-making process “unwieldy and unstable.” Lastly, this plan is less disruptive than the partisan rebalancing plans, motivated by the stonewalling of Judge Garland’s nomination and the rapid-fire confirmation of Justice Barrett.
There are of course various questions as to how this addition would impact the Court’s internal procedures. For example, the decisions around what cases the Court hears by discretionary review, via writ of certiorari, are equally important as the resolution of cases on the merits, and the current unwritten practice is that it takes four justices to vote to allow certiorari. However, these questions around changes to internal procedures are easily resolved through the notion that the rotating justices ought to be treated as equivalent to the permanent justices. The number of justices required to grant certiorari would need to be raised to six. Further, rotating judges would need to be given the authority to author decisions (just as judges currently do when sitting by designation).
Our solution also differs from other proposed lottery systems. One such system involves a two-week elevation of rotating panels consisting entirely of randomly selected judges, with further restrictions on panel composition based on the nominating President. It also involves the adoption of a super-majority requirement for overturning acts of Congress. But this more ambitious proposal raises several problems. First, the super-majority requirement is of unclear constitutionality and certainly disruptive. Second, the proposal is focused on partisan balance, which does not address the main problem of fragile precedent resulting from Court monoculture. Third, it would run into the “one supreme Court” concern. Lastly, it would create new issues of circuit comity, as it statistically favors the larger circuits and particularly the Ninth Circuit, which has nearly double the number of authorized judges as the next closest circuit.
III. The Proposed Solution Will Not Satisfy Partisans, but It May Be the Compromise That They Need
This novel reformation is not without its unknowns and limitations. The proposal is not an end-all solution. In the short term, the solution does not resolve the current 6-3 ideological divide. But this solution is not about bringing ideological balance to the Court, an aim that is never guaranteed nor advisable (nor even possible). Rather, it is a step towards breaking the current rut and the gamesmanship that cultivates monoculture at the Court.
For that reason, this solution may be a disappointment for those individuals seeking a specific partisan rebalancing of the Court. Indeed, recomposition, whether by legislation or the political process, will be fought by partisans who want a Court that aligns with their ideological views. But this solution still reaches many of the fairness and legitimacy concerns held by partisan-rebalancers, if they can all step back from the fight to maintain or reform the Court through partisan means. Moreover, as the proposed solution is non-partisan, it may appeal to a greater range of political actors.
This solution may, of course, just shift the gamesmanship to the circuit court level. But that is already happening without Court reform. Yet to the extent gamesmanship occurs in filling circuit vacancies, the efficacy of that tactic is doubtful given the sheer number of positions at the circuit court level and random-selection panels. As a matter of political economy, it is not feasible to reconstitute or rebalance an entire circuit, absent mass retirements or member expansion. Compare this with the retirement or death of a single justice, which can result in the overturning of precedent on a discrete issue of national importance. One exception to this general rule, however, was the 2015–16 Senate, which did not confirm any judges appointed by President Obama. Aside from that period, the last two administrations have placed priority on and have filled judicial vacancies.
Finally, this approach would not address the strategic retirement and morbid death watch concerns in the way that simply imposing term limits or age restrictions would. Indeed, this is the common approach in the state judiciary. The imposition of strict term limits or age restrictions, however, would require constitutional amendment and is therefore exceedingly unlikely to occur. As justices “shall hold their Offices during good Behaviour,” term limits are not constitutionally sound on their face. It is possible that this could be avoided through the use of “senior status” justices as term justices, but that route could undermine the aim of elevating current circuit court voices to the Court.
The Supreme Court is entering a new phase in which precedents may be abandoned with little pretense. These violent sea-shifts are made possible by a system that elevates rigid predictability above responsive stability. The current approach is essentially unique to the Court—the lower levels of the federal judiciary use random-assignment and nearly every state judiciary uses term limits or age limits. Our solution addresses this monocultural rut by incorporating randomly selected circuit judges into the Court, affording the Court greater diversity and juridical stability.