Law & Society Blog

In my post Weaken the Court, Strengthen the Rule of Law, I argued that the hierarchical nature of the law does not require a similarly hierarchical structure of the courts. Now let me take this one step further: Why not eliminate the Supreme Court as a standing body altogether? Inevitable circuit splits would be resolved by an ad-hoc supreme (constitutional) court, which would be in session twice a year. That court would be comprised of randomly selected judges, chosen, for example, from among the judges of the courts of appeal. Each so-selected court would hear and decide cases, selected by the outgoing court. The combination of (i) random composition, and (ii) separation of case selection and decision, would make ideological court-packing virtually impossible, depoliticizing the appointment of judges in the process. Random selection would also likely have a moderating influence on the courts of appeal, because an appeals panel, intent on adopting an extreme position, could no longer expect review by a politically, ideologically, or philosophically sympathetic Supreme Court. Random selections would introduce a significant element of uncertainty into the set of known extra-legal determinants of future judicial behavior. It would be impossible, for example, to apply an attitudinal model of the court to predict future decisions. It stands to reason that genuinely legal considerations would gain in relative importance as a basis for judicial decisions from an internal point of view, and a basis for “prophecies of what the [ad hoc supreme court] will do in fact,” from an external point of view. Random selection, as outlined above, would at the very least keep openly political jurisprudence at bay, one of the more corrosive variants of pervasive instrumentalism.

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