In their article "How to Save the Supreme Court," Daniel Epps and Ganesh Sitaraman argue that the Supreme Court faces a legitimacy crisis requiring it to either «radically change—or die.» They outline two proposals to drastically alter the court’s composition, which they hope will depoliticize the appointments process and diminish the influence of the Supreme Court on presidential elections. After first publishing their proposals in 2018 in an opinion piece at Vox, they expanded their ideas into a longer essay in the Yale Law Journal. Along the way, their proposals garnered significant public attention, racking up over 10,000 views on SSRN and a shout-out by Democratic presidential hopeful Pete Buttigieg. (I reviewed the article for SCOTUSblog here.)

Professor Stephen Sachs has now published a response in the Yale Law Journal Forum criticizing Epps and Sitaraman’s proposals as unwise, unconstitutional and entirely unnecessary.

Sachs begins with a point-by-point critique of Epps and Sitaraman’s two proposed reforms to the court’s composition. Under the first proposal, which they dub the «Lottery Court,» nine of the 179 federal appellate judges would be selected randomly to serve for two-week terms on the Supreme Court before being replaced by the next group of nine randomly selected judges. Epps and Sitaraman suggest that this change in the judicial selection process would depoliticize the court, which would become a constantly shifting group of jurists picked at random from among the appointees of perhaps half a dozen presidents. They also hope that these temporary «justices» would exercise moderation in deference to their limited terms.

The flaw in this system, Sachs observes, is the statistical certainty that some iterations of the «Lottery Court» would be skewed heavily in favor of one party’s appointees or the other’s—the kind of imbalance that could undermine the legitimacy of the court’s decisions. Acknowledging this problem, Epps and Sitaraman suggest safeguards, such as requiring that no more than five of the randomly selected justices be appointed by a president of the same party, and by imposing a 6-3 supermajority requirement before the court could overturn an act of Congress. Sachs pokes significant holes in the constitutionality of both these limitations, and argues that these problematic «patches» are actually the «tail that wags the dog.»

Sachs also questions Epps and Sitaraman’s premise that two-week terms would produce moderate decision-making, arguing that the micro-terms could just as easily result in a «judicial goat rodeo, with wild and unpredictable swings in doctrine every two weeks.» Far from depoliticizing the court, Sachs contends, the «Lottery Court» risks transforming the temporary justices into hyper-partisan vigilantes intent on changing as much law as possible during their two-week tenure.

Sachs is equally critical of Epps and Sitaraman’s second proposal, dubbed the «Balanced Bench,» which would require the Supreme Court to consist of 15 justices: five affiliated with the Democratic Party and five affiliated with the Republican Party, each of whom would have permanent seats on the court, and who together would pick five more justices to sit for a temporary period by designation. Sachs is concerned that the permanent labeling of 10 of the justices as «Democrat» or «Republican» would only exacerbate the politicization of the court, and wonders what would happen to a potential justice affiliated with some other political party—say the Green or the Libertarian Party. He also doubts the constitutionality of various aspects of this proposal, and then asks who would resolve these constitutional questions: the "new" court or the old one?

Sachs’ most significant objection, however, is to the very premise of Epps and Sitaraman’s proposals. The court is not in crisis, Sachs argues. To the contrary, Sachs suggests that it is only liberals unhappy with the court’s conservative composition who perceive the institution as in need of saving.

Sachs may be right that the alleged legitimacy crisis is only in the eye of the beholder. But he is too quick to dismiss one of the main goals of Epps and Sitaraman’s proposed reforms that has nothing to do with political ideology: to remove the Supreme Court as a major influence on presidential elections. The Republicans’ refusal to hold a hearing for President Barack Obama’s nominee, Merrick Garland, helped to turn the 2016 presidential election into a battle over filling that vacancy. As Sachs acknowledges, 25 percent of those who voted for Donald Trump in 2016 listed the Supreme Court as their «most important» issue.  Although the nation faced a host of major problems that had little to do with the Supreme Court—ranging from climate change to health care to foreign policy—the 2016 presidential election turned in large part on the question of who would choose the next Supreme Court justice. As Epps and Sitaraman see it, the Supreme Court’s composition needs to change not only to save the court, but also to save the country.

Amanda Frost, Academic highlight: Sachs responds to "How to Save the Supreme Court", SCOTUSblog (Feb. 4, 2020, 11:00 AM), https://www.scotusblog.com/2020/02/academic-highlight-sachs-responds-to-how-to-save-the-supreme-court/