Read on Twitter
1/ Another thread on our Supreme Court reform piece. Thanks to @beccarosen for editing it! https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/
2/ It reports the arguments and findings of our underlying new paper - check it out! (And thanks to @Mark_Tushnet and untaggable others for comments so far!)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032
3/ Our central analytical contribution is intended to be to group imaginable reforms into two types: "personnel" management reforms, and "disempowerment" reforms. We then go on to canvass the desirability, legality, and feasibility of the reforms.
4/ While we hope our binary is of independent use, we also inveigh against what has been the centrist and (given the politics of con law profs!) dominant reform criterion: restoring the Supreme Court's legitimacy.
5/ Instead, we argue that what matters is the compatibility of the Supreme Court with democratic self-determination -- both as a matter of process and for progressive results that centrism doesn't reach or rules out.
6/ The question is not "how to save the Supreme Court" (as @danepps and @GaneshSitaraman proposed in an already classic paper with which we're in dialogue) -- but how to make it safe for democracy. https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court
7/ When it comes to the thorny details, we are in dialogue with many of the great scholars of our time - and we would love their comments offline! These include @BojanBugaric, @espinsegall, @Vermeullarmine @jedshug @lessig @DanielJHemel @JohnFabianWitt etc.
8/ One concern about disempowering the Supreme Court is that it could threaten rights protection. We deal with this objection in the paper, drawing on scholars like @jamalgreene and @GregoireWebber. Americans fail to understand that "legislated rights" is their primary tradition.
9/ For progressives, our intervention is in continuing dialogue with @LPEblog movement and debates swirling around "progressive constitutionalism" that @JedediahSPurdy @ksabeelrahman @akapczynski are thinking through with us.
10/ Our paper also recognizes that our arguments have mainly circulated among conservatives in recent decades (after they were devised by progressives in the early 20th century). We are eager for dialogue on Supreme Court reform which conservatives have been interested in.
