Break Up the Big Court

At time of writing, the Roberts Court is hearing Donald Trump’s preposterous challenge to birthright citizenship—a constitutional knot so neatly tied that not even the court that gave us Plessy could feign to find fault with it in 1896. Furthermore, Jodi Kantor and Adam Liptak dropped a major report with the New York Times, exposing the internal reasoning, or lack thereof, that ultimately led to the modern “shadow docket.” This strategy has been used to grant President Trump numerous victories in his second term while sidestepping the transparency, deliberation, and jurisdictional sequence the court has historically preferred. And make no mistake: it is a strategy. Along with originalism and the major questions doctrine, the Roberts Court has given itself a raft of new or enhanced tools with which to empower conservatives and thwart liberals. Such developments reveal a remarkably rapid decay undermining the legitimacy of the Supreme Court.

Given the dangerous disregard for the Constitution this court has demonstrated, it’s worth taking a deeper look at the highest court in the land; what it is and what it could be. 

The Supreme Court has always been tricky. Its principal role in our republic—judicial review, which gives it the power to overturn acts of Congress—is not enumerated in the Constitution. Neither is its size nor the responsibilities of its justices, both of which have changed much over the centuries—from one chief justice and five associates, splitting their time riding circuit across their new country then returning to drafty, borrowed chambers in Philadelphia as the Supreme Court, to nine full-time justices serving exclusively in their handsomely appointed neoclassical temple in Washington. Most of its features have evolved or accreted over time, and unlike the expansive language of Article II that establishes an independent executive, the Constitution explicitly places the courts almost entirely under the statutory authority of Congress.

Authority which Congress has used. Many times. Throughout our history, Congress has wielded its power to discipline, manipulate, and sculpt the Court, sometimes creatively. In the very case that established the power of judicial review, the outgoing Federalist Congress decided to pack dozens of newly formed lower courts with judges hostile to the incoming Democratic-Republican majority and the new president, Thomas Jefferson. Jefferson, through his Secretary of State James Madison, tried to block the appointments with a procedural trick, which eventually produced Marbury v. Madison. 

Then consider when, furious with Andrew Johnson’s opposition to Reconstruction in 1866, the Radical Republican Congress passed a law abolishing each Supreme Court seat after it fell vacant. The effect was that Johnson, for all the damage he did do, never appointed a Supreme Court justice, and the bench fell to seven. When Ulysses S. Grant won the presidency in 1868, Congress expanded the court back to nine, where it has remained since.

And in the wake of multiple, generationally mendacious rulings, the time has come for Congress to take up its chisel and sculpt the court again. It cannot continue in its current form. From Citizens United to the Dobbs decision, from the anti-democratic confession that is Trump v. United States to the act of merely hearing a challenge to birthright citizenship, the Roberts Court has demonstrated an unmistakable and unprecedented preference for oligarchy and concentrating power in the person of the president. They have invented new standards, twisted old ones beyond recognition, played Judas with our Constitution, and Thrasymachus with our republic. These rulings are not criminal. But they are politically delegitimizing. Approval ratings (not something the court has often found itself worried about) are at historic lows in recent years, deeply polarized, and thermostatic.

This is a solvable problem, but a problem perpetuated by one party will not find a solution bursting with bipartisan collegiality. The Roberts Court is the final product of a partisan industry dedicated to the anti-democratic transformation of American society, and all its conservative justices are products of that pipeline. It’s a problem caused by conservatives and conservatives are, for now, quite happy with it. So, it will fall to Democrats to fix it. 

The most common proposal is to tie the number of justices to the number of circuit courts, which was the norm until 1869, and would give the next Democratic trifecta a Supreme Court of thirteen justices to rebalance. This is a measured response. Judicious, even. But not sufficient. Court capture has proven a reliable strategy for permanently locking the partisan preferences of a minority into our constitutional order. While it would take generations to achieve again, simple court expansion doesn’t alter these incentives. It simply moves the line of scrimmage further from the goalposts.

No. I would like to propose something entirely different. 

Let’s break up the Supreme Court. 

This is a two-part proposal, and the justifications for each part are obvious in isolation, but their real potential is only unlocked when used in tandem. And while the flashier part is breaking the power of the Supreme Court, that’s actually second in the order of operations. Before we can break up the Supreme Court, we need to fix the lower courts.

Because even if it’s less sexy, and even though the highest court in the land enjoys more power than ever in its history, the state of federal justice in general has seldom been sadder. Lower courts are chronically overburdened and underfunded. Taking a case to trial often takes years, turning defendants' lives into a precarious waiting game—one they may well spend in pretrial detention, unable to work, unable to meaningfully live. This surely contributes to the appalling fact that over 90% of guilty verdicts result from plea deals, which are rife with prosecutorial gamesmanship, perpetrator-seeking, and horse trading. It never fails to amaze that these conditions don’t in themselves constitute an unconscionable violation of the Sixth Amendment. 

This issue is old. But unlike the political difficulties of the Supreme Court, it’s not especially partisan. The fundamental problems our federal judiciary faces are capacity and resources. At almost every stage, Congress has been slow to expand the courts of appeals and glacial at increasing their budget. Even as the Warren Court expanded defendants’ rights and Nixon launched the Drug War, as the need for trials, attorneys, judges, and resources swelled, Congress was slow to act. The last time a new court of appeals was added was 1981, when the population was roughly 30% smaller than today. There isn’t enough money and there aren’t enough courts and at no time on record has there ever been enough of either.

As for the Supreme Court, setting aside the extent to which it is thoroughly captured, it has also accumulated too much power. Judicial review has grown into something more akin to an exclusive, proprietary claim over constitutional interpretation such that legislative agendas with clear democratic mandates can be enacted, only to be put down by our self-appointed national council of wizards. As recent developments with the shadow docket prove, they no longer even feel the need to justify themselves to posterity. Laws, regulations, and government programs with majority support enacted decades ago can be undone in near total silence, with no more than a sparse paragraph announcing the decision. Our sclerotic Congress has ceded to this court a crippled but dangerously anti-democratic legislative power. This too is not new. But with thorough Republican capture locked in for a generation and with the shameless partisanship (and in a couple of cases, open corruption) of their justices, it’s simply more obvious.

A sweeping overhaul of the federal courts is necessary, one that addresses both of these travesties simultaneously. And because the framers subordinated the courts so completely to Congress, this can be done without the need for any amendment, with nothing but a simple majority in both chambers and the president’s pen.

It’s worth reiterating that everything here is well within the statutory power the Constitution grants to Congress and, in fact, the text of Article III establishing the courts is so light, it’s worth quoting sections 1 and 2 in full:

Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Article III, Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Essentially, anything except the existence of a Supreme Court, its unique original jurisdictions, its final appellate jurisdiction, and the general principle that federal judges serve lifetime appointments, is entirely at the discretion of Congress. With this power and the state of the justice system at large in mind, let’s reshape the Supreme Court for the 21st century:

It begins with the courts of appeal. Given that we have never achieved adequate court capacity, we should stop adding one or two a generation, and double them immediately—from thirteen to twenty-six. The number of district courts beneath them should be increased proportionally. Also, the budgetary requirements to reasonably meet the constitutional guarantees of the Sixth Amendment should be assessed and rolled up into the annual budget. This would likely be necessary to avoid the judicial equivalent of the problem of adding just one more lane to a highway, but that’s a different essay entirely. For now, we’ll focus on the structure of the courts themselves.

Let’s say the district courts are doubled, like the courts of appeal. And for the sake of argument, let’s say the number of district and appellate judgeships also doubles with the total number of courts. We’ll also ignore the Federal Claims and International Trade courts for this exercise, to keep it neat. 

That gives us twenty-six circuits, 188 districts, and 1,730 Article III judgeships, greatly expanding the capacity of our federal justice system for case throughput, faster verdicts, and the resolution of appeals. Plea bargains instantly become less tempting, and prosecutorial and law enforcement conduct are introduced to greater judicial scrutiny. If paired with budget reforms, it can also rebalance the power between prosecutors and defense attorneys.

If that were all these reforms could accomplish, they would be well worth pursuing in a justice system as strained as ours. But if we take the second step and break up the Supreme Court, they also unlock the potential for a powerful reform to judicial review.

Since January 2025, the two greatest bulwarks against the second Trump presidency have been lower court judges and the American tradition of jury trials. Breaking up the Supreme Court combines both to create an entirely new vision for Article III—one that embodies our traditions of justice and democracy far better than the First Street mystery cult and, combined with dramatic court expansion, will give American justice a level of accountability, legitimacy, and scale it has never known.

When I say “break up the Supreme Court,” I mean that we should establish judicial review by sortition. A Supreme Court empaneled with a random draw from the entire federal judiciary. A jury of judges.

There are currently nine justices on the bench. Going forward, each will be assigned to one of the twenty-six courts of appeal. This will be their primary role going forward. For each case referred to the Supreme Court, a bench of nine judges drawn at random from the full federal judiciary will be empaneled to hear and decide the case. After deciding the case, they will return to their respective benches until called upon again. Supreme Court Justice is now a temporary role.

The appeal here is ancient. Sortition, or lottery, as a means of making decisions (including conducting democracy) is the tradition from which our jury trials emerge, and stretches back at least as far as Athens. Its chief virtues are that it maximizes the wisdom of the crowd–which is one of the chief instrumental arguments for democracy itself–and it leverages the incorruptibility of chance, which is the observation that you cannot bribe an official who does not know they will be in position to be bribed. In short, a decision made by a random selection from the larger body of decision makers has a higher chance of better outcomes than one than one made by a fixed group of specialists, and it’s difficult for billionaires to know which judges need a lavish yacht cruise to convince them of the merits of ruling a certain way on certain cases if the judges themselves don’t know which cases they’ll be ruling on.

This method of “judgeship by jury” gives the Supreme Court a more composite character, ensuring that the broadest possible cross section of jurisprudence is represented. It removes the prestige and power that have accrued to our permanent justices. It recenters judicial review as a historical process shaped by the full sweep of the judiciary, rather than the fixed preferences of a permanent bench. It is nonpartisan, at least insofar as it grants no party any more power to reshape the composition of the judiciary than the electorate does. And when drawing from the expanded judiciary we’ve already established, it pulls from a very deep roster of expertise and experience, and as wide a range of diversity of thought as our duly elected representatives are willing to confirm.

In my view, this plan in its entirety should be the first order of business for any future Democratic trifecta. The Roberts Court, supine and submissive as it is to its Caesar of choice, will suddenly rediscover its constitutional role again the moment the White House changes the color of the drapes. Especially if the new Congress arrives with a demonstrable interest in court reform. As they did with the major questions doctrine and the shadow docket under Obama, they’ll invent new ways to fight their partisan battles if necessary, because partisan warriors are what they are. And after keeping the patient embers of corruption smoldering through another Democratic administration, they’ll simply resume their march toward tyranny and oligarchy. They will never stop. Enough. Break their power and begin an immediate transition to a better system of both justice and judicial review. It will take time to confirm so many new judges, so we should start right away. The new system will begin better than we’ve ever known and only improve with time, while the old, broken one will trouble us no more.

Featured image is Circuit judge Hal W. Adams riding mule to avoid high water