The current reality of a conservative Supreme Court supermajority, formed in part due to Senate Republicans{\textquoteright} successful blockade of Merrick Garland in 2016, has raised the salience of proposals to reform the selection and retention institutions for justices to levels not seen since Franklin Roosevelt{\textquoteright}s court packing proposals in 1937. While the passage of any reforms seems unlikely in the near future, the Court{\textquoteright}s many high profile conservative rulings since 2020, including the overruling of\ Roe v. Wade, 410 U.S. 113 (1973), in\ Dobbs v. Jackson Women{\textquoteright}s Health Organization, have only intensified scrutiny on the justices and the current practice of lifetime tenure.
In this Article, we contribute to the scholarly debate around court reform by employing computer simulations to project the future ideological composition of the Court and to evaluate the effect of potential reforms to the Court{\textemdash}as well as possible changes in norms surrounding appointment politics{\textemdash}on the ideology trajectory of the Court. In terms of reforms, we focus on the most widely discussed proposals: term limits and court packing. In terms of norms, we examine what would happen if the example of Garland in 2016{\textemdash}a Senate controlled by the opposite president of the party completing blockading any nominee{\textemdash}became commonplace.
We begin by producing a {\textquotedblleft}baseline" prediction of the future ideological composition of the Court for the rest of the century. We show that the events of 2016{\textemdash}the Garland blockade and the election of Donald Trump{\textemdash}locked in place a solid conservative majority on the Court. Barring a string of unlikely events, this majority will persist for several decades into the middle of the 21st century. We also show that the Court is quite likely to remain polarized into two ideologically distinct blocs, with a near-empty center. As the conservative majority slowly dissipates, the median justice will probably swing regularly between the two blocs.
Next, we go beyond existing simulation approaches by developing a normative framework for tradeoffs implicit in different judicial selection and retention institutions. These tradeoffs arise because different degrees of judicial independence, as embodied by lower responsiveness to election results and longer tenures on the Court, create both costs and benefits to society. In particular, we simulate the introduction of both court packing and fixed term limits for justices. We show that the introduction of staggered term limits would prevent any long-run ideological bias in the composition of the Court. Compared to the status quo, term limits would have the effect of increasing the frequency of appointment conflict by making appointments more regular (e.g., once every two years); this regularity would also have the desirable effect of lowering the intensity of appointments, since every president would be guaranteed an equal number of appointments per term.
}, year = {2024}, }