Court Reform in The Reconstruction Papers

This year, The Reconstruction Papers did not have an essay on court reform. It has unsurprisingly been one of the main things we've been asked about.

Court reform is something we have published a few essays on at Liberal Currents.

• In 2023, I made proposals that included giving every president one and only one appointment to the Supreme Court, no matter how many justices are already on the Court. I also suggested some reforms that moved us away from a paradigm of judicial review and leaned more towards legislative supremacy.
• This past April, Justin Briley suggested something more radical: doubling the lower courts, then redistributing the current Supreme Court justices to the circuit courts and remaking the Court into a jury of judges that is selected randomly every time.
• In July, I suggested a simple one-time expansion followed by a judicial term limit amendment that includes language about altering the majority created by the expansion as part of a deal to get a term limit amendment ratified.
• In August I argued that we could expand the Court in stages (like Senator Wyden’s proposed reform in 2024) but in a way that changes the majority immediately, and also double the lower courts right away.

These do not exhaust the proposals that are out there in public already. And to some extent there wasn't a felt urgency to have a court reform essay precisely because the options really are out there already. And the basic logic is straightforward: change the current majority so you can otherwise do the difficult work that needs to be done after Trump is out of office.

So what we're going to do is have a court reform essay in next year's issue of The Reconstruction Papers, and contributing editor Adam Rust is going to write it.

Adam has written a number of excellent essays for us, not the least of which is the concluding essay of the current issue, which talks about the difference between the constitutional law that law professors and judges like to focus on, and constitutional politics, which is what truly determines the content of that law.

The goal of his essay for the next issue is to actually lay out the range of court reform proposals that have been discussed in public, to hammer in just what precisely the goal is we're supposed to be pursuing through any particular reform, and to judge each proposal accordingly.

The plan is to have the next issue in people's hands by July 4, 2027. Court reform will not be a political possibility until at least seventeen months after that. There is still time to hash these things out.

And that is precisely what we need to do, and precisely what Liberal Currents is about. The Reconstruction Papers is our most concentrated dose of hashing out of that kind that we offer.

And you can get this year's, and reserve next year's so that you get to read Adam's court reform essay in beautifully designed print, for just $60 for the first year while our subscriber drive is going on.