Stephen Gardbaum (University of California, Los Angeles (UCLA) – School of Law) has posted What the World Can Teach Us About Supreme Court Reform (UCLA Law Review Discourse, Forthcoming) on SSRN. Here is the abstract:
Judicial review remains more controversial in the United States than in other democracies, despite its far longer history. This is sometimes explained by the unique lack of express textual authorization for the power, even though it is not as if inclusion in the constitutional text immunizes a provision from widespread criticism and contestation. This essay argues that a more plausible and less appreciated reason is how judicial review is institutionalized and practiced in the United States. Whether or not judicial review is ultimately justified in a reasonably well-functioning democracy, where it is established, it should be structured in a way that minimizes inherent concerns about unaccountable discretion and partisanship. By comparative standards, judicial review in the United States largely does the opposite and, by means of a series of contingent and unnecessary design features and practices, maximizes them. In this rare moment of serious, self-conscious deliberation about institutional change on the Supreme Court following the Presidential Commission’s report and several hugely controversial decisions last term, it is these distinctive features and practices that should be the focus of reform efforts. The essay first identifies and explains what they are, and then explores which can, and should, be changed in line with global comparative wisdom. Finally, the essay briefly considers and evaluates certain other current reform proposals – increasing the size of the Court, stripping it of jurisdiction, and establishing a legislative override – which, while more squarely within Congress’s powers to enact, do not reflect how most other systems of judicial review attempt to keep inherent concerns about discretionary and partisan decision-making to the minimum.
And from the paper:
These three reforms – ending life tenure and simple majorities for both appointment of justices and exercises of judicial review – would be transformative, and so should be the primary focus of reform efforts. If the proposed measures were enacted but are held unconstitutional, then specific, focused, well-explained constitutional amendments would be the fallback position.
Highly recommended.