Document Type

Article

Publication Date

2025

Abstract

Partisan decision-making by even only one Supreme Court Justice in a single case is not a trivial matter. The ill effects are greatly compounded when five or more Justices of a similar partisan bent regularly deliberate about, and decide, cases in a partisan way. At that point, we’ve got what can fairly be described as a partisan Supreme Court.

I argue in this Article that, to all of our great misfortune, a partisan Supreme Court is very much what we’ve got today. On a more hopeful note, though, I also argue that although reforming the Court to be a much less partisan institution won’t be easy, it’s not an insuperable task if given the priority it deserves.

I begin in Part I by underlining the perils of having a partisan Supreme Court. Those perils may seem rather abstract and theoretical during times in our nation’s history when the various parts of our federal system are functioning reasonably effectively and working together in a reasonably harmonious way. Today, however, surely isn’t one of those times. Most obviously, we have a President who claims to have a popular mandate to use the full powers of the presidency to put into effect a radical political agenda, who takes as a given that members of his party in Congress must bend to his will, and who seems intent on testing the resolve of the federal courts in general and the Supreme Court in particular to keep him within constitutional bounds.

In Part II, I contend that today’s Court is not only partisan, but extremely partisan. Its decision-making is driven by, and reflects, a radically conservative political ideology that makes its partisanship especially dangerous and harmful. To lay the groundwork for my proposal of a necessary first step to a much less partisan Court, I discuss in Part III two developments that were instrumental in making the Court as partisan as it has become.

With the lessons from those two developments in mind, I offer in Part IV a simple, though perhaps counterintuitive, proposal for reform of the Supreme Court appointment process that I believe is essential to substantially defuse, and keep defused, the partisanship that plagues the Court. In Part V, I briefly discuss the two most prominent proposals for Supreme Court reform in recent years – proposals not addressed to the appointment process – and explain why neither has anything like the potential of mine to make the Court a much less partisan institution.

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