What Courts Are For
June will produce a series of decisions that further shift the separation of powers. It will also reopen the court-reform debate. This is the first in a series of posts on the framework that debate ha
The Supreme Court’s June calendar is going to be loud. We are still expecting decisions in the major birthright-citizenship case, in the FTC removal case that asks the Court to gut what is left of Humphrey’s Executor, and in a handful of other matters touching the president’s power to direct, override, or fire officers across the executive branch. The pattern of the term so far suggests the Court will hand the administration at least a few wins on the structural questions. Each of those rulings, taken on its own, will look like a discrete legal holding. Taken together, they will mark another sizeable step in the redistribution of constitutional authority away from Congress and the judiciary and toward the executive.
When that happens, the court-reform conversation is going to get loud again too. Each new round of structural rulings produces a new round of structural reform proposals — court-packing, term limits, jurisdiction stripping, supermajority requirements, congressional override, ethics codes, new courts of review, sortition, and so on. The menu has been roughly the same for 150 years. What is missing from the conversation is not new ideas. What is missing is a framework for evaluating the ones we have.
The next several posts here will start to build one. This first post is just a placeholder for what such a framework needs to do, and an introduction to the two considerations that, in my view, ought to anchor it. The next post will work out what those considerations imply for the kind of judicial work courts should and should not be doing. Posts after that will apply the framework to specific reform proposals and to specific cases, one at a time.
What a welfare framework has to answer
A welfare framework for court reform has to answer two questions. The first is normative: under what conditions should courts intervene against the elected branches? The second is its structural mirror: under what conditions should they refrain? Almost every reform proposal on the menu is, implicitly, an answer to one or both of these questions. Most are not explicit about it, which makes them hard to compare and easy to deploy selectively. A useful framework has to make the tradeoffs visible before it scores any particular reform.
Two considerations, in my view, have to anchor that framework. They come from different intellectual traditions and they do different work, but they converge.
Political equality
The first consideration is political equality, in its substantive (i.e., “thick”) sense. The thin version is familiar: equal votes, equal speech and association rights, equal access to civic participation. The thick version requires more, namely roughly equal influence over political outcomes, supported by the bodily-freedom and equal-civic-standing protections that make equal participation meaningful. Its lineage runs from the Declaration through abolitionist constitutionalism through the suffragists into the modern civil rights tradition. It is a more demanding criterion than thin formal equality, and an authentically American one.
It does double work for a reform framework. It supplies a principled reason to narrow judicial power across most domains, because outcomes produced by politically-equal processes carry a presumptive legitimacy that judicial substitution erodes. And it supplies a principled reason for judicial intervention in one specific domain — the conditions of political equality themselves — because those are exactly the conditions democratic majorities cannot reliably police on their own. The criterion narrows the Court’s role and dignifies it at the same time.
Institutional competence
The second consideration is institutional competence. Courts and legislatures differ systematically in their capacity to find, weigh, and update facts, and the asymmetry runs sharply in favor of legislatures. Courts decide cases on the basis of briefs, oral argument, and a constructed record from a single litigation. They have no investigative staff, no subpoena power beyond the case in front of them, no continuous oversight, limited ability to update once a holding issues, and a precedent system that freezes empirical premises in place for generations. Legislatures hold hearings, employ permanent expert staff, can demand testimony, can iterate through amendment, can revisit and revise. The asymmetry is most damaging precisely where courts have made themselves the constructive decisionmaker on contested empirical questions. The list of constitutional doctrines that rest on factual claims that turned out to be false or unrevisable is long, well-known, and structurally generated.
And, of course, let’s not forget that American democracy rests in the premise that we elect our representatives and endow them with the power to make law. In modern politics, there is sometimes a sense that our representatives adbicate that power, being all too happy to let judges make the tough decisions. How we evaluate judicial reforms, in my opinion, should turn at least in part on how they encourage legislators and executives to fulfill their institutional responsibilities.
The two considerations point at the same operating principle from different directions. Political equality says courts should not make policy even when they could make it well. Competence says they cannot make policy well even when they are allowed to. Together they imply a single distinction — between the judicial work that protects the conditions of political equality and the judicial work that constructs policy responses to social facts — and the framework I will be developing turns on that distinction. The next post will lay it out.
Why now
There is a reason to do this before, rather than after, the June docket finishes its work. The structural decisions of the next few weeks will reset the inter-branch defaults the country operates under. Some proposals about what to do next will be terrible. A few will be good. None is worth evaluating without a clear account of what one wanted the courts to be doing in the first place.