Court Reform: Devil in the Details

The path to long term reform there is harder to come by though reading in between the lines Biden/Harris not going on the record to confirm or deny their stance is telling.  It is politically sensible for them to do that.  On the merits, the best approach probably is to be agnostic while opposing confirming Amy Coney Barrett before the election.  "Let the people decide" has some merit now. Plus, it is largely a congressional issue.

A conservative path there would to address things along the edges such as a pending House bill that deals with ethics, open courts and other related issues that should have bipartisan support (though ethics calls to mind specific individuals).  A middle path is some sort of term limit measure, putting side the trickiness including the burdens of an amendment and the trickiness of trying to do it without one.  Again, there is chance for bipartisan support, partially since going forward it can limit Democrats.  

There are also other less talked about approaches. At the end of my last entry, I referenced a book from a couple years ago (e.g., it didn't factor in changes in the law regarding excessive fines) by a conservative appointment, Jeffrey Sutton, in support of state constitutional law.  Again, some things he said did not to me compute -- won't micro-target that here -- but the overall idea is something I support.  For instance, it seems to be dubious for the U.S. Supreme Court to worry about narrow questions of criminal procedure in various cases and apply it to the whole country.  Likewise, if a state wants to use a higher test for separation of church and state, it often is not some free speech or other constitutional violation to do so. And, many cases might be avoided if state courts just rely on state constitutional provisions.  

This goes to a general idea -- see, e.g., Professor Eric Segall -- that the Supreme Court does too much. There are various ways to limit their reach conceptually (such as the "Footnote Four" approach).  A more active approach would be to use congressional powers over the federal courts to do this. Congress did that in the 1990s by limiting federal habeas, which has issues in application, but the concept that only clear violations of federal law should be subject to lower court review there has some logic.  

Traditionally, especially before the Reconstruction Congress expanded federal jurisdiction, federal courts had less call to interpret state law.  And, not just because there was no Fourteenth Amendment. Somewhat related here would be something like requiring six justices to overturn national legislation or the like.  Segall's even numbered court idea in a fashion does the same thing since an evenly divided Court -- if it was split ideologically -- would need crossover to overturn things. 

Thinking long term, an approach with staying power can not simply be one-sided that appeals to one political party.  At certain times in our history, staying power was advanced because of long term party control. So, e.g., Jeffersonians and Republicans from the 1860s and beyond. Such unity in a way was seen in my lifetime -- the last fifty years was a conservative tinged period in the courts though it seems silly to say that for some since it wasn't completely so.  But, it wasn't one sided back then either in all ways -- John Marshall still controlled the Court and black rights soon went into a decline.  

How to put this in place is a hard question and ultimately some of it at least will just have to wait for history to play out.  The most likely amendment, however, is a term limit one and that is quite sensible. It might be best to submit again the opening statutory reforms cited above (with some study of the needs of lower courts that might later lead to additional judges) as well as a term limit measure as an opening gambit. It is quite true that the Democrats might have a small window. But, it might feel well to talk about fifteen seat Supreme Court legislation on February 1st or something, less likely to happen.  

Again, there are sound grounds -- both as a matter of norm correction and overall democratic-republican theory -- to significantly change ground here. And, it is not just a matter of court expansion. The details are as usual where the devil comes.