Everyone should read Samuel Moyn's case for Supreme Court reform

[Nevilledog]

Link to tweet

https://www.whitehouse.gov/wp-content/uploads/2021/06/Moyn-Testimony.pdf


Political control of judiciaries is essential to all regimes — and, far from being illiberal or undemocratic, is especially precious in liberal democracies.2 This political control is meaningfully exercised, not merely by appointment of judges, but also by jurisdictional channeling and definition, which has to be open to ongoing adjustment in light of experience, and to institutional experiments when the opportunities outweigh the risks. The best hope for and model of Supreme Court reform lies in the fine-tuning of jurisdiction, to limit the policymaking power it currently enjoys.

Albeit in different cases, judges themselves concur that the prior regime of judicial self-restraint except in the case of “clear error” or serious violation has broken down, and perhaps it was inevitable that this occur. For this reason, the fine-tuning of Supreme Court power has to come from without. And while this strategy is justifiable on its own, it is fortunate that the United States Constitution gives Congress extraordinary and uncontroversial flexibility, not merely in the design of the federal judiciary, but also in the allocation (and therefore channeling, or even deprivation) of its jurisdiction.

The problem to solve is not that the Supreme Court has lost legitimacy, understood as the current trust of enough observers, but that it thwarts the democratic authority that alone justifies our political arrangements. It is one thing to insulate and protect interpreters of our Constitution and laws from certain kinds of short-term democratic control. It is quite another to cede the last word over large parts of our national political conversation — not to mention the power to edit and throw out major laws — to less accountable powers and, to add insult to injury, to pretend that doing so is either mandated by our Constitution or essential to democracy.

The American higher judiciary has too much authority, allocated and arrogated, and this fact has been grievous for our national political experience. Not least, in recent decades, it has diverted collective political choices on a range of important issues, as well as the most momentous national elections, into a distorted and unhelpful contest about who will serve on judiciaries mistakenly empowered to face our dilemmas. In the most visible cases, the choices in these dilemmas are almost never constitutionally or legally compelled, which the close disagreement of our justices themselves already proves. Rather than continuing a regime of politics by means of the higher judiciary, Americans deserve a more democratic politics for themselves.

*snip*

[hlthe2b]

1. Yes. We need to strategize on this and not merely bemoan the difficulty of doing so.

[druidity33]

2. K&R, thank you! nt.