A New Way to Select Justices?

(Editor's Note: This piece is co-authored by Lee Drutman and first appeared in Law and Liberty on June 20, 2022.)

The Supreme Court is—once again—at the center of a controversial debate in American politics after someone leaked a draft opinion that would overturn the Court’s prior decision in two landmark abortion cases—Roe v. Wade and Casey v. Planned Parenthood. States will be free to pass new laws restricting or expanding women’s access to abortion within their borders if the draft—written by conservative justice Sam Alito—stands as the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

The prospect of a handful of conservative justices empowering states to restrict abortion—or ban it altogether—has galvanized pro-choice activists in support of institutional reforms which they believe will prevent conservatives from overturning precedents established by liberal justices in past cases like Roe and Casey in the future. According to their proponents, reforms like expanding the size of the Supreme Court will “depoliticize” it by getting the “right” justices on the Court. As a result of these reforms, Supreme Court rulings will be less ideological and partisan—from the vantage point of their proponents—in the future.

These efforts envision Supreme Court justices lacking ideological and partisan views which could influence how they rule in a specific case. The problem, however, is that such individuals do not exist. Supreme Court justices are human. Justices have their own opinions. And they develop specific views and partisan allegiances based on their opinions just like everyone else.

As James Madison noted in Federalist 10, “The latent causes of faction”—our opinions—are “sown in the nature of man.” No one is exempt from this fundamental dynamic, not even Supreme Court justices. And Madison observes that factions are “everywhere brought into different degrees of activism according to the different circumstances of civil society.” The implication of Madison’s argument is that factions are an inescapable fact of life in a free society and that they exist everywhere . . . even on the federal bench.

Currently, conservative and liberal activists employ litigation instead of legislative strategies to enact their preferred policy change. They seek to amplify the impact justices’ opinions have on the course of American politics more broadly. Such strategies only work when activists can reliably forecast how justices are likely to rule in their case once it gets to the Supreme Court. And while litigation strategies often take years to work, justices’ life tenure and the Supreme Court’s low turnover make it possible for activists to form accurate expectations about the Court’s future composition.

While it is impossible to find justices who lack partisan or ideological views, the Supreme Court can adopt a reform to mitigate litigation strategies used by activists to adjudicate controversial policy questions, like abortion, based on their expectations of how individual justices will decide their case. This would be done by changing the selection process for the Supreme Court’s eight associate justices.

Using a sortition process to pick Supreme Court justices would reduce the impact of their opinions on public policy questions by making it impossible to know in advance which justices will decide a case when litigants file it in federal court. Sortition is when public officials are selected randomly out of a larger pool of candidates. Incorporating it into the confirmation process will alter the current dynamic surrounding the Supreme Court.

Under this plan, the president and Senate would approve candidates to sit on the twelve Circuit Courts of Appeals as required by the Constitution’s Appointments Clause. The Supreme Court’s eight associate justice seats would then be filled by a recurring random draw out of the 179 circuit-court judges. Justices would take a temporary leave of absence from their circuit-court duties to serve on the Supreme Court. After one term—one year—the individuals selected by sortition to serve on the Supreme Court would return to the lifetime circuit-court seat to which they were originally appointed. Only the Chief Justice would remain on the Supreme Court from one term to the next as required by the Constitution.

Sortition would reduce lawmakers’ incentives to punt controversial issues, like abortion, to the Supreme Court instead of acting on those issues themselves.

Incorporating sortition into the judicial selection process in this way would alter the Supreme Court’s present dynamic for the better. Of course, justices would still be human. But sortition would make activists less likely to pursue litigation strategies to achieve their policy goals in the Supreme Court. This is because activists will be less likely to ask the Court to change public policy if they can’t know in advance the general opinions of those justices.

Critics note that sortition cannot prevent a conservative or liberal majority from controlling the Court in a given term. However, the impact those justices would have on the future course of American politics would be limited to ruling on cases that their predecessors opted to hear in the Supreme Court’s previous term and picking the cases that their successors would hear in the following term. And the odds are low that a majority of the Court’s justices would be conservative or liberal over three successive terms if the justices are selected randomly.

Critics also contend that sortition will lead to “constitutional anarchy” by making it harder for the Supreme Court to serve as the Constitution’s ultimate arbiter. They fear the consequences of any reform that would undermine the Supreme Court’s current status that gets to decide what the Constitution, and, by extension, federal law, allows.

But this is precisely the point of sortition. The Supreme Court is not the ultimate arbiter of American politics because no one body should be the ultimate arbiter. Far from creating constitutional anarchy, using sortition to select the Supreme Court’s associate justices would rejuvenate the Constitution’s separation-of-powers doctrine by rebalancing the relationship between Congress, the president, and the Supreme Court, channeling activist efforts to remake public policy in their image back into the political sphere—places like Congress—where they belong. That’s how politics worked under the Constitution for much of America’s history.

Far from weakening the Supreme Court, sortition would strengthen the Court by enhancing its institutional legitimacy. This is because picking its associate justices randomly depersonalizes the process. The Supreme Court would then be left alone to focus on performing its intended role under the Constitution—adjudicating disputes between parties that involve the federal government and federal law.

Sortition would also reduce lawmakers’ incentives to punt controversial issues, like abortion, to the Supreme Court instead of acting on those issues themselves. This is because lawmakers—like activists pursuing litigation strategies—could not be sure which circuit-court judges will be deciding cases related to the issue in question. And lawmakers can’t tell activists demanding action on an issue that they are waiting for the Court to weigh in.

Whether people agree or disagree with the Supreme Court’s anticipated ruling in Dobbs, the controversy has created the opportunity for adopting far-reaching reforms that can revitalize the Constitution’s separation of powers and make our politics less dysfunctional moving forward.