Reforming the Supreme Court: A Call for Structural Change

In the coming weeks, the Supreme Court will conclude its term, leaving a significant impact on the legal landscape since its conservative majority formed in 2020. The focus will be on high-profile cases, like the anticipated changes to the Voting Rights Act. However, the underlying issue is not the court’s actions but rather its freedom in decision-making, detached from the traditional system of checks and balances.

Historically, the court operated under a fear of reversal. This acted as a restraint, reminding justices that straying too far from mainstream constitutional views could provoke a corrective response. For example, the Constitution has been amended several times to reverse court decisions, and Congress has also acted, as seen with the Lilly Ledbetter Fair Pay Act in 2009. The court has even overturned its own decisions, such as Bowers v. Hardwick in 2003, which previously allowed states to criminalize same-sex relations.

Today, with intense polarization and legislative gridlock, this fear has faded. Justices recognize that a deadlocked Congress is unlikely to pass corrective statutes or amendments. The conservative majority, likely to persist for years, has little reason to fear future reversal.

Without this fear, lawmaking risks becoming a personal policy tool for those who do not face accountability. To restore the court’s legitimacy, more action than merely adding seats is required. A fundamental change in judicial power is essential, aiming to reintroduce the possibility of correction.

A two-part structural reset is proposed. First, Congress should use its constitutional authority to expand the court’s size. More importantly, justices should operate in randomly assigned three-judge panels with the power to make final decisions. This setup would shift the incentives for justices immediately. If their opinions are final for decades, they may become ideologically aggressive. If they know a poorly reasoned opinion might be overturned by another panel, the focus shifts towards stability and respect for precedent.

With a larger pool of justices appointed under different administrations, the stakes of judicial appointments decrease. This system emphasizes varied perspectives over one permanent majority. Panels having final decision-making authority, without review by the full court, diminishes the influence of an ideological majority. Critics may worry this system could destabilize law with varying panel decisions, but it instead promotes cautious, moderate rulings.

Implementing this reform is not a drastic constitutional change. Article III allows Congress to determine the size and structure of federal courts. The Supreme Court’s size has varied from six to ten members over 250 years. U.S. courts of appeals already use three-judge panels, so this approach is well-established.

This reform aims to reshape the court into a dynamic legal institution rather than a fixed ideological group. Instilling fear of reversal is a step toward institutional humility. With current low public confidence, the need is for a court that’s definitive only when correct, not merely because it holds the final say.

Paul M. Collins, Jr., a professor at the University of Massachusetts Amherst, coauthored “Supreme Bias: Gender and Race in U.S. Supreme Court Confirmation Hearings.”