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.
Introduction: An Inflection Point
The past few years have marked an inflection point in half a century of partisan mobilization around the staffing of the United States’ super-legislature.1 In 2016, the Republican-controlled Senate categorically refused to consider any nomination by Democratic President Barack Obama to fill the Supreme Court vacancy opened by the death of Republican-appointed Justice Antonin Scalia—ostensibly on grounds that no Supreme Court appointment should be made in a presidential election year.2 When Republicans captured the White House in 2017 and retained a slim majority in the Senate, they abolished the filibuster for Supreme Court nominations to confirm the Republican president’s appointment of Neil Gorsuch as Justice Scalia’s replacement, over substantial Democratic opposition that would have prevented the appointment had the filibuster remained available.3 The subsequent nomination of Brett Kavanaugh by the same Republican president to the seat vacated by Republican-appointed Justice Anthony Kennedy’s retirement was confirmed by a razor-thin margin,4 after the nominee himself explicitly cast his nomination in partisan terms at his own confirmation hearing.5 Finally, the rush by the Republican president and the Republican-controlled Senate to appoint Amy Coney Barrett to the vacancy created by the death of Democratic-appointed Justice Ruth Bader Ginsburg, who died after voting in the election that would remove that Republican president from office and strip the Republican party of its Senate majority had already begun,6 made clear that whatever principle might have been at stake in the Republican-controlled Senate’s refusal to consider a Democratic president’s nomination four years prior, it had nothing to do with election-year timing or deference to the public will. Indeed, the only principle (if it can be called that) unifying these recent episodes is the willingness of Republican elected officials to block the Democratic party’s appointments to the Supreme Court, and to staff the Court with appointees whom Republican elected officials perceive to be their own co-partisans, by whatever means are within their power.7 If there had been any doubt as we have hurtled toward this point over the past several decades, it should now be clear: the United States Supreme Court is a partisan institution, and its staffing is determined by partisan power (and increasingly, by little else).
The collateral damage of the confirmation wars has been substantial. The legitimacy of the Supreme Court as a trusted arbiter of legal and constitutional disputes of national importance is under as great a threat today as it has been during the most contentious episodes of its history.8 There are some who may welcome this development—who think that the Supreme Court’s perceived institutional legitimacy has always been a sham, and that the democratic deficits of judicial review far outweigh any redeeming value of the institution.9 Others, however, will mourn the Court’s lost legitimacy, and some of them are looking for ways to salvage it.10 Though I count myself as a skeptic of strong forms of judicial review, in this Essay I offer a novel proposal that can be used as a structural principle to assist in the latter, re-legitimizing effort, whether alone or as a complement to other extant proposals. This proposal, while it may help maintain or reinforce the legitimacy of judicial review, also aligns with the agenda of those who wish to see the federal judiciary’s role in deciding contentious issues of national importance diminish, precisely because it will likely result in a retreat of the Supreme Court from the most contentious issues in our national life. The proposal is simple: 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.
I. Are Partisan Courts a Problem?
The past few years have put a spotlight on the political nature of courts—and particularly of the Supreme Court—in a way not seen since the heyday of American Legal Realism and the court-packing crisis of the New Deal era, or even the Progressive era before that.11 But this level of attention does not necessarily mean that judicial partisanship is a bad thing. The most plausible way to frame the partisanship of the Supreme Court in positive (and perhaps Burkean) terms is to view the Court as an institutional mechanism to tie social changes of constitutional magnitude to relatively long-time scales by means of life tenure. John Fabian Witt recently predicted (and critiqued) this type of structural argument:
[The n]ew justification (& critique) of the [Supreme] Court won’t be about law. The new justification will be that [the Supreme] Court lets political coalitions extend their authority beyond their electoral successes. For good & for ill. That’s all. [The question] is whether majorities will put up with it. I suspect not.12
Witt’s argument has two possible readings. The first, and more cynical, reading is that evanescent electoral majorities in the political branches may, through luck, skill, and strategic persistence, use the Court’s power to harden their preferred policies into constitutional rules, making those policies more durable than any electoral majority can be expected to be. Call this the “Smash and Grab” argument. The second (and more favorable) reading is that the increasing but unaligned durations of official tenure held by Presidents, Senators, and Supreme Court Justices ensure that, for legal and social changes of constitutional magnitude to be made, the proponents of such changes will likely have to prevail consistently in electoral politics over a long enough period of time to build a Supreme Court majority, which may be a reliable indicator of democratic legitimacy. Call this the “Persistent Majorities” argument.
The Smash and Grab argument is anti-democratic in a way that seems exactly contrary to the most common contemporary justification for the judiciary’s countermajoritarian tendencies—the protection of constitutional rights (and particularly the rights of minorities) against the passions of inflamed, illiberal, and perhaps evanescent electoral majorities.13 But I also have doubts about the Persistent Majorities argument, precisely because it depends on electoral victories in the most anti-majoritarian of our national electoral institutions: the Senate and the Electoral College. Indeed, three of the nine current Supreme Court Justices were appointed by a president who lost the popular vote in the election immediately preceding their nominations, and a majority of the Court’s current Justices were confirmed by Senators who received fewer votes than the Senators who voted against their confirmation.14 This anti-majoritarian character of today’s Supreme Court may inform Witt’s question “whether majorities will put up with” Supreme Court authority framed in these terms—the question seems to assume that the Court will continue to be staffed—as the current Court has been staffed—by an electoral minority. Partisan alignment of the Supreme Court with an ideologically cohesive popular minority seems to be a real challenge to anyone who believes that the law ought to have some democratic accountability.
Still, I remain sympathetic to the notion that the courts play an important role in protecting unpopular minorities—particularly those whose identity or membership is constructed by reference to immutable characteristics rather than ideological cohesion—from invidious discrimination at the hands of an inflamed majority. And if the rule of law—however one defines it—is to endure, courts (and a court of last resort) will still be necessary (though, of course, they will never be sufficient to that end). Therefore, in the absence of democratic reform of the Senate or the Electoral College, some structural tool to blunt the partisan impulses of the Justices—and especially the effects of such impulses on the Court’s legitimacy—seems to be called for even in the absence of some fully-worked-out theory of the legitimacy of judicial review in general. In short, if partisanship is not a virtue to be operationalized in the structure of the federal judiciary, it is a vice that must be managed by that structure.
But if partisanship in the exercise of the judicial power is a problem, what is the solution? Various options have been proposed and tend to fall into two categories identified by Ryan Doerfler and Samuel Moyn.15 The first, “personnel reforms,” involve changes to the selection, appointment, or tenure of Justices: term limits, partisan balancing proposals, or outright court-packing.16 The second, “disempowering reforms,” divert some of the judiciary’s authority to the political branches: such proposals include jurisdiction stripping, notwithstanding clauses, supermajority requirements for striking legislation, and the like.17
While I think some of these reforms may do some good in preserving or restoring the Supreme Court’s legitimacy, and in avoiding the Smash and Grab model of judicial appointments and behavior, I doubt they will be sufficient if the role of the Court in enforcing the rule of law is to be maintained. To serve that purpose without undermining the Court’s legitimacy, either judges must become non-partisan—precisely the fantasy that the confirmation wars of the past half-century have shattered—or their partisanship must be somehow tamed, checked, or cabined—perhaps by partisanship itself. This latter option is particularly in keeping with American constitutional theory—the principle that “[a]mbition must be made to counteract ambition” thereby “supplying, by opposite and rival interests, the defect of better motives . . . .”18 That principle suggests we need a structural understanding of the role of an admittedly partisan federal judiciary in the broader American constitutional framework, and of partisan Supreme Court Justices within a partisan federal judiciary.
II. A New Structural Proposal
Tools to address judicial partisanship have been proposed in the past and are enjoying another moment in the limelight in the current crisis. While ambitious jurisdiction-stripping proposals are getting increasing attention of late,19 most notable are term-limits proposals of the type that have been bandied about before,20 and have been given renewed attention by a number of law professors organized under the “Fix the Court” banner.21 Their proposal to stagger Supreme Court appointments at regular two-year intervals and rotate Justices out of active service after eighteen years was recently introduced as a bill in the House of Representatives..22 There have also been panel proposals that would have Supreme Court appeals heard by a (possibly random) subset of eligible Justices rather than the full bench.23 One such proposal would staff such panels from an expanded Supreme Court based on the “I Cut, You Choose” procedure adapted from game theory: the parties would propose panels to one another in an iterative process, which would end when one party agrees to a panel assembled by the other party.24
While each of these proposals implicitly recognizes partisanship in the judiciary as a vice rather than a virtue, they all seek merely to limit the durability or consequences of a partisan tilt in the Supreme Court—to accept partisanship as a biasing influence but to limit its duration (via term limits) or effects (by letting litigants choose their Justices). None of these proposals would attempt to check judicial partisanship with judicial partisanship. My proposal does. It draws on the same game-theoretic insight as the iterated-panel-selection proposal (while implementing that insight more directly) and could well be layered over any of these or other proposals. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case.
At its most basic, the proposal would: (a) commit the question of selecting and certifying appeals for Supreme Court review to one group of judicial officers; and (b) commit the hearing and disposition of appeals so certified to a different group of judicial officers. Call the first group the “Certiorari Bench” and the second group the “Merits Bench.”
The Certiorari Bench and the Merits Bench could be divisions of the Supreme Court delineated by rule or statute, or the Merits Bench could simply be the Supreme Court while the Certiorari Bench could be a separate judicial body created or designated by Congress to manage the discretionary appellate docket of the Supreme Court. Indeed, the latter model has some analogues in other judicial systems—and even in the history of the federal judiciary. For example, New York affords the Appellate Division of the Supreme Court (the state’s intermediate appellate court) authority to certify appeals to the New York Court of Appeals (the state’s court of last resort).25 And a similar delegation of authority to the judges of the Federal Circuit Courts of Appeal was among the reforms successfully recommended to Congress by Supreme Court Justices prior to the current era of the certiorari docket.26 Thus, from 1891 to 1925, the Supreme Court’s appellate docket was in fact significantly determined by discretionary Circuit Court certification.27
The key insight of the “I Cut, You Choose” procedure is that the cutter has an incentive to limit any unfair partiality in the division of a resource between rivals, because any such partiality will likely redound to the benefit of the chooser rather than that of the cutter. By structuring the Supreme Court’s work using an analogous “I Choose, You Decide” strategy, this proposal has the potential—if implemented effectively—to prevent the most polarized partisan issues from being constitutionalized through Supreme Court intervention. In an era when Supreme Court Justices are transparently being nominated and confirmed based on their perceived willingness (or unwillingness) to enshrine partisan positions on particular issues of policy in constitutional law, the power to both decide when to issue a ruling on such an issue of law and to then issue that ruling is substantial, and tends toward the Smash and Grab model of Supreme Court authority. Rather than pretend that such partisanship is not in play, the “I Choose, You Decide” proposal seeks to check and balance such partisanship while maintaining the Supreme Court’s role as an authority on questions of federal and constitutional law.
The key feature of this proposal is that it uses structural design to give partisan actors incentives toward moderation in constitutional innovation, reaction, or countermajoritarian policymaking through the courts. So long as the partisan policy preferences of the two benches are not strictly aligned (an issue I address further below), the Certiorari Bench has an incentive to select for adjudication only those cases on which it does not strongly object to the partisan preferences of the Merits Bench majority, and the Merits Bench majority thus would have no opportunity to enshrine its most polarizing policy preferences in constitutional law. Such polarizing questions would then, of necessity, be left to democratic mobilization (or, potentially, regional variation—a possibility also discussed below). This leaves unresolved the deep democratic deficiencies of the American constitutional system—most notably the composition of the Senate and the Electoral College—but at least takes one powerful means of entrenching countermajoritarian policies off the table.
Another nice feature of this proposal is that it does not require the heavy lift of constitutional amendment. The appellate jurisdiction of the Supreme Court is within Congress’s control under Article III of the Constitution, which provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”28 While the power of Congress to completely insulate its or the Executive’s actions from judicial review is (rightly) controversial,29 the Supreme Court itself has long interpreted the regulation of its appellate jurisdiction as being wholly within Congress’s control under this constitutional provision.30 Indeed, it was Congress that once provided for discretionary Circuit Court certification of cases for Supreme Court appellate review in the Evarts Act,31 and it was Congress that created the current certiorari-based regime by passing the so-called “Judges’ Bill” in 1925,32 at then-Chief Justice Taft’s persistent request.33 The “I Choose, You Decide” proposal thus avoids the constitutional questions that attend many other reform proposals, particularly those that might be seen as in derogation of a constitutional principle of life tenure for federal judges.34
III. Implementing “I Choose, You Decide”
For my proposal to be effective as a structural check on partisanship in the Supreme Court, the two groups of judicial officers it calls for must not be aligned in their partisanship. There are any number of ways of assuring—or at least raising the probability—of such partisan misalignment between the Certiorari Bench and the Merits Bench, though there are obstacles.
One approach to avoiding partisan alignment across the two Benches might seek to regulate the appointments process. For example, some procedure might hypothetically be devised for identifying the partisan adversaries of a nominating President in Congress and then conditioning the appointment of a Justice to the Merits Bench on giving those congressional adversaries the power to identify candidates for appointment to the Certiorari Bench (or vice versa).35 But such proposals might founder on either constitutional limits regarding the prerogatives of the President and the Senate over judicial appointments or practical difficulties in binding Senate majorities in advance on the exercise of their advice-and-consent powers. Moreover, it is not clear that service on the Certiorari Bench would be attractive to highly qualified judges and lawyers without the promise of someday serving on the Merits Bench.
Another possible mechanism would be to revert to the pre-1925 practice of giving Court of Appeals judges the responsibility to certify cases from their own appellate dockets for Supreme Court review—with a concomitant contraction in the authority of the Supreme Court to certify appeals by writ of certiorari. In this model, the Courts of Appeals would collectively serve as the Certiorari Bench. But the multiplicity of the Circuit Courts of Appeals makes this solution problematic. Because we can expect the partisan alignment of at least some Circuit Courts of Appeals to coincide with the partisan alignment of the Supreme Court at any given time, giving the Courts of Appeals the power to select cases for Supreme Court action might simply exacerbate partisan entrenchment in the Smash and Grab mold. Circuits that diverge from the partisan tilt of the Supreme Court would tend away from certifying appeals, while Circuits that align with the partisan tilt of the Supreme Court would be eager to certify appeals. Again, partisan alignment between the Merits Bench and the Certiorari Bench is a distinct possibility, and could be expected to lead to partisan selection of cases to be decided along partisan lines.
One particularly elegant alternative solution that avoids all of these pitfalls would be to retain authority to certify appeals in a unitary Supreme Court divided into a Certiorari Bench and a Merits Bench,36 with service on each Bench to be based on length of tenure. This proposal could be integrated into a proposal for fixed terms of active service for Supreme Court Justices appointed at regular two-year intervals,37 or any other term-limits proposal, though it does not require term limits in order to be effective. In one possible example of such a system, the first several years of a Justice’s tenure could be served on the Certiorari Bench, and the remainder could be served on the Merits Bench.38 In another refinement of this example, service on the Merits Bench could similarly be limited to a term of years, with the remainder of the Justice’s life tenure being served out back on the Certiorari Bench.
Moreover, if the Merits Bench were to have an even number of justices—as Eric Segall has notably recommended39—it would be fairly easy to design the tenure of the Justices in such a way as to make it exceedingly unlikely for multiple presidents of any particular party to dominate both the Certiorari Bench and the Merits Bench at the same time, regardless of the presence or absence of Senate majorities for confirmation. For example, a Court whose Justices serve eighteen-year active terms—six years on a Certiorari Bench of three judges followed by twelve years on a Merits Bench of six judges—could not see both benches dominated by one party without that party controlling the White House for at least four out of five consecutive four-year terms, which has happened only twice in the past century: the Democratic dominance under FDR and Truman, and the Republican dominance of the Nixon-Ford-Carter-Reagan-Bush years. Notably, even this danger could be substantially mitigated by extending the terms of Supreme Court Justices to twenty, twenty-two, or even twenty-four years and expanding the Court to, say, a Certiorari Bench of five or six Justices or a Merits Bench of eight Justices.
Additional tweaks are obviously available and could further influence the likelihood that any particular partisan bloc could dominate both the Certiorari and Merits Benches at the same time. For example, Justices could alternate between the two Benches in two- or four- or six-year intervals, or Justices could be assigned to the Certiorari Bench after their active terms on the Merits Bench expire rather than the other way around. The latter option increases the risk of Justices resigning in favor of lucrative private-sector employment rather than serving out a term on the Certiorari Bench. But that risk could be turned to an advantage, insofar as it offers a means to address the concerns regarding gerontocracy and retirement-timing gamesmanship that motivate many term limits proposals without inviting a constitutional debate over life tenure. For example, Justices could begin their terms with a fixed number of years on the Certiorari Bench, followed by a fixed number of years on the Merits Bench, and then return to the Certiorari Bench for the duration of their “good behaviour”40—or for as long as they decline to retire.
IV. Addressing Potential Objections
Two substantial objections to the “I Choose, You Decide” proposal are apparent and must be addressed.41 The first is that the ability of the Supreme Court to set its own agenda via certiorari is in fact an important aspect of its constitutional authority, and therefore ought not to be tampered with. The second is that the tendency toward Supreme Court inaction generated by the proposal may lead to inconsistencies in the interpretation of federal and constitutional law by the various Courts of Appeals, and that such inconsistencies may persist for extremely long periods of time.
With regard to the first objection, scholars and Supreme Court Justices have argued that the power not to decide is, in fact, an important attribute of the Court’s authority. In this view, discretion to decide some questions and leave other questions undecided is a key part of the Court’s participation in the process of constitutional development, and its primary means of agenda-setting in that process. Descriptively, this is clearly an accurate portrayal of the modern Supreme Court, and has been documented as such by political scientists.42 It is certainly a power that the Justices themselves believe is important.43 But normatively, the idea that the Supreme Court’s unelected judges ought to have the power to set an agenda for constitutional development is historically recent and theoretically problematic. It is, indeed, flatly inconsistent with the powers of the federal judiciary described in the Federalist Papers, and particularly with Alexander Hamilton’s famous defense of the courts as the “least dangerous” branch of the federal government on grounds that they “can take no active resolution whatever” and “may truly be said to have neither FORCE nor WILL, but merely judgment . . . .”44
The absence of discretion in selecting cases was a key feature of this early vision of the federal courts. Indeed, the “duty of giving judgment”45 in whatever cases came in over the transom formed an important part of the founding justification for the power of judicial review: a court obligated to decide the case before it cannot shirk that duty by refusing to announce a result compelled by the Constitution.46 As Edward Hartnett put it when synthesizing the arguments of scholars such as Alexander Bickel and John Harrison, removing the duty to take judicial action while retaining the power to do so undermines much of the justification for judicial review, converting it into “nothing more than a call for mixed government, with one branch—the judiciary—representing the interests and views of the ‘better’ class of society.”47 Whether one feels this call should be answered in the affirmative is likely to determine whether one finds this first objection to the “I Choose, You Decide” proposal persuasive. Candidly, I find myself unmoved.
But even for defenders of the Supreme Court’s institutional authority to set the agenda for constitutional development, the “I Choose, You Decide” proposal need not be seen as a threat. All it does is ensure that this authority is not exercised in such a way as to give any individual Justice (or group of Justices) the authority to ask and answer the agenda-setting question at a single stroke. It need not deprive any individual Supreme Court Justice of the prerogative of both choosing which cases warrant Supreme Court review and deciding cases as a member of the federal court of last resort. All it need do is prevent any Justice from exercising both powers in the same case. To the extent that arguments in favor of the certiorari regime turn, like Justice Brennan’s argument on this point, on the unique responsibility of Supreme Court Justices to take a long view of the development of the law,48 “I Choose, You Decide” does not threaten that responsibility; it merely divides elements of that responsibility up over the course of a Justice’s career.
The second objection is not so easily addressed. Partisan misalignment between the Certiorari Bench and the Merits Bench might well lead the former to deprive the latter of any opportunity to address legal or constitutional issues that admit to partisan polarization. This tendency would change the default resolution of such issues from partisan adjudication to no adjudication, at least at the Supreme Court level. Three consequences might be predicted to emerge. First, the authoritative nationwide settlement of polarizing issues of federal or constitutional law would likely freeze as of the date of adoption of “I Choose, You Decide”—the Court’s most recent authoritative statement on such issues as of that date is likely to become its last. Second, to the extent that the inferior federal courts create new rules of constitutional or federal law—or, as they have recently shown some appetite for doing when they perceive a partisan shift on the Supreme Court,49 issue rulings contrary to Supreme Court precedent—those lower court rulings are unlikely to be reviewed (or, as the case may be, corrected) by the Merits Bench. Third, to the extent that a circuit split arises on a partisan issue, it is likely to go unresolved, potentially indefinitely. These three problems would likely compound each other: lower courts unhappy with the Supreme Court’s final word on a contentious issue might simply defy it, setting up a split with other lower courts that adhere to the Supreme Court’s most recent precedent, and the resulting circuit split might harden into a persistent difference in the application of federal law based on geography for want of Supreme Court review. It is not difficult to imagine a situation in which the constitutionality of state and federal statutes on issues such as access to abortion, regulation of firearms, affirmative action programs, anti-discrimination laws, consumer protection measures, religious accommodations, and regulation of elections becomes subject to deep and persistent regional division.
These concerns are substantial. They go to the core of the Supreme Court’s traditionally recognized responsibility to ensure the consistency and uniformity of federal law.50 They raise the prospect that the Constitution might come to mean one thing in Boston and another in Biloxi, and that the economic, political, and social cohesion of the nation might fracture (more than it already has) as a result. Of course, federalism inherently presents similar opportunities for regional variation in legal rights and standards, and the Union yet endures. And the potential for a persistent stalemate that satisfies neither partisan bloc might lead Justices to engage in horse-trading across the divide between the two Benches to allow even partisan issues to come to resolution, as they appear to do now in contentious cases.51 Even so, the changes to our civic framework that would attend a significant retreat of the Supreme Court from our legal and political lives are momentous enough that they call out for serious engagement.
There are some complementary reforms that might mitigate these concerns, but such reforms would undermine, at least in part, the counter-partisan promise of “I Choose, You Decide.” Most obviously, the Certiorari Bench’s discretion to deny the Merits Bench an opportunity to rule on partisan issues might be cabined by creating certain classes of mandatory appeals. This approach was part of the Evarts Act, which governed the Supreme Court’s appellate jurisdiction prior to 1925 and preserved appeals as of right directly to the Supreme Court in broad categories of cases including “capital or otherwise infamous” criminal cases, cases involving the construction of the federal constitution or the consistency of a statute with that constitution, or cases where the jurisdiction of the federal courts was at issue.52 An analogous limitation on discretion was included in the 1972 Freund Committee proposal for a National Court of Appeals, which would have required that court to “retain[] for decision on the merits cases of genuine conflict between circuits (except those of special moment, which would be certified to the Supreme Court).”53 Alternatively (or in addition), the void created by the Supreme Court’s retreat might be filled with the work of specialist inferior courts, such as the explicitly specialist Court of Appeals for the Federal Circuit or the implicitly specialist Court of Appeals for the District of Columbia Circuit.
But both of these potential solutions create problems of their own. The enumeration of categories of mandatory appeals raises the question of how membership in such a category is to be determined (or, more to the point, who will have authority to determine it). This is particularly problematic for categories as vaguely defined as, for example, “cases of genuine conflict between circuits.”54 Moreover, the creation of specialist Article III courts—which has generated some controversy where it has been attempted55—simply pushes the problem of partisanship down to those courts, with the added risk of capture by repeat players in the areas of specialization.56 Ultimately, any effort to maintain the consistency and uniformity of federal law under an “I Choose, You Decide” system comes at the price of upsetting that system’s balance of partisanship against partisanship.
Conclusion: Which Is the Greater Evil?
This dilemma requires us to measure up our tolerance for politics carried out through the courts and our commitment to uniformity in federal law, and to choose which matters most to us in the Supreme Court’s design. The alternative to polarizing partisan rulings from the Supreme Court is not a less partisan Court, it is a less active one. We can have a more robust Supreme Court, or a less partisan one, but we cannot have both.
Americans deeply disagree about the best principles upon which to build a just society, and about the application of our Constitution to our contemporary problems. That is not in itself a bad thing, but it does require us to find a way to live together in the face of such disagreement. We have lately become accustomed to asking the Supreme Court to tell us how to do so by choosing a winning side in our partisan debates, even while we reserve the privilege of denigrating the Court when it chooses our adversaries over us. If we could ever plausibly have believed that our deep differences would dissolve under the guidance of such Supreme Court opinions, we should by now have disabused ourselves of such a notion. By continuing to indulge the obvious fiction that the Supreme Court merely calls balls and strikes according to rules on which we all agree,57 we will continue to find ourselves in the position of Shylock and Gratiano before the incognita Portia: obsequiously praising the learning and honor of our judges, but only when they rule in our favor.58 If we no longer wish to indulge this charade, we must be willing to channel our disagreements into other civic institutions—and perhaps rejuvenate those institutions so they will be fit for purpose.