Off-Balance: Five Strategies for a Judiciary That Supports Democracy

Roosevelt Institute, 2018

45 Pages Posted: 25 Sep 2019

Date Written: November 2018

Abstract

America’s founding generation was wary of judicial power. Embittered by abuses by unelected judges in England, they imported and invented myriad tools for citizens to check and balance judicial discretion. Inherent in courts is a risk that judges get too far out of step with the public’s opinion and needs. That danger is mitigated by active oversight by the people’s representatives.

The controversial confirmation of Brett Kavanaugh underscored the Supreme Court’s democratic deficit. While the bench makes policy decisions that affect all Americans, four out of five members of its conservative majority were nominated by presidents swept into office despite losing the popular vote. Two members of the majority were confirmed despite serious sexual assault or harassment allegations made by women — who, collectively, make up the majority of the population. Social science research has shown that the Roberts Court is the most pro-business, anti-worker, anti-consumer court in modern history. Polls indicate low or declining support for the Court among Black Americans, Latinx Americans, women, and the public at large.

Because justices are among the most important rule-writers for the U.S. economy and democracy, policymakers in the new Congress need to determine how to rebuild public confidence in the Court. The stakes are high. As inequality corrodes our government and economy, the Court can either block urgent remedial action or help encourage it. This paper outlines five strategies that legislators of either party can deploy to strengthen Court accountability:

1. Adding justices to the bench through Court expansion; 2. Removing justices through impeachment; 3. Changing the jurisdiction of the Court; 4. Ignoring or overriding Court decisions; and 5. Rewriting the Constitution to allow term limits, elect justices, or eliminate judicial review.

Some of these strategies are controversial, but all have precedents. We summarize the pros and cons of each option, then describe and weigh these options in light of historical and contemporary examples. All are means to accomplish a needed re-balancing of the Court’s role in public life.

Keywords: Supreme Court, New Deal History, Judicial Review

JEL Classification: N11, N12

Suggested Citation

Tucker, Todd, Off-Balance: Five Strategies for a Judiciary That Supports Democracy (November 2018). Roosevelt Institute, 2018, Available at SSRN: https://ssrn.com/abstract=3456983

Todd Tucker (Contact Author)

Roosevelt Institute ( email )

4079 Albany Post Rd.
Hyde Park, NY 12538
United States

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