Supreme Court as Superweapon: A Response to Epps & Sitaraman

Stephen E. Sachs

Introduction

 Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature,
How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court.
Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. If the Supreme Court
needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence

 Daniel Epps and Sitaraman propose two main reforms: rotating the Court’s membership biweekly or re- quiring
a partisan balance for its Justice. Sachs thinks that these proposals are unfortunately ill-conceived, and that they
might end up destroying the Court’s legitimacy to save it.

 Indeed, the strangest thing about these proposals is the view that the Court needs saving at all.

First Proposal: The Lottery

 The first is the “Supreme Court Lottery,” a form of rotation in office. It would staff the Court with a newnine-
judge panel every two weeks, randomly selected among federal appellate judges

 The authors hope this rotation would reduce the temperature of any one appointment battle, “prevent the
creation of cults of personality around the Justices,” and encourage “more minimalistic, narrow, deferential
decisions.

 This has two downsides:

o The first is one of math: Even a perfectly fair lottery across a perfectly balanced appellate bench
would not produce a balanced Supreme Court. Random chance would yield a partisan lineup of7-2 in
more than a sixth of all panels, and 6-3 in more than half.

 The authors add two patches to the system: a five-Justice cap on same-party appointees for
each panel, and a 6-3 supermajority requirement for overturning acts of Congress.

o The second is political: the political consequences of the cap are just as uncertain. A partisan-balance
rule hard-coded for a two-party system can be shattered by the emergence of third parties, or by the
borderline-plausible relabeling of existing ones

 The authors say a randomly chosen Court would be more cautious, its Justices cowed by their temporary
service.

o But ephemeral tenure might also encourage a judicial goat rodeo, with wild and unpredictable swings
in doctrine every two weeks

Second proposal: The Balanced Bench

 The authors’ other proposal is the “Balanced Bench.” The Court would have ten permanent Justices—five
Democrats and five Republicans—who would invite five other federal judges to sit by designation for limited
terms.

o Authors would expect the Justices to choose at least one moderate Justice who vote could break ties.

 However, Sachs says that this will undermine, rather than support, the very idea of law itself as separate from
politics.
 o Permanently labeling certain Justices as Democrats or Republicans—making their party membership
the very condition of their holding their seats—raises rather than lowers the salience of partisanship.

Legitimacy:

 Sachs ask if the Court really needs saving. Is there any “legitimacy crisis” at all?”

 The authors are most concerned with the Court’s “sociological” legitimacy—the “prevailing public attitudes”
to- ward the Court as an institution, and especially the public’s willingness to accept a judicial settlement of
contested issues.

 Indeed, from the available data, it’s hardly clear that the public has lost much confidence in the Court.

o Polls suggest that trust in the Court has remained largely the same over the last decade; its approval
rating may even have gone up.

 Sachs offers three alternative explanations to the sense of crisis: Partisanship, Polarization and Pedigree

 Sachs concludes that if the Supreme Court needs saving—a doubtful proposition to begin with— it will be
saving from itself, and from too broad a conception of its own legal omnipotence. These problems will not be
solved by technical quick-fixes or institutional restructuring.

The Success Sequence Is About Cultural Beefs, Not Poverty

Matt Bruenig

 The author’s goal is to show that conservatives use the Success Sequence (a formula for avoiding poverty) to
say that personal failures are the cause of poverty in society. This is an example of how a causal story about
poverty is constructed to promote certain political and ethical values.

 Bruenig exemplifies this by showing how two authors use differently the Succeses Sequence:

o For Sawhill and Haskins, the Success Sequence consists of the following five rules

1. Graduate high school.

2. Get a full-time job.
3. Get married before having children.
4. Wait until at least age 21 to get married. 5. Wait until at least age 21 to have children.

o Wilcox and Wang claim to be using the Sawhill and Haskins Success Sequence and even cite to their
work. But they aren’t actually. The Wilcox and Wang Success Sequence has only three rules:

1. Graduate high school.

2. Get a full-time job.
3. Get married before having children.

 This discrepancy between Haskins/Sawhill and Wilcox/Wang reveals that many of the rules of the Success
Sequence are just the tacked on cultural preferences of the authors

 The author argues that trying those who promote their cultural views as the panacea to poverty are doing a smart
strategic move. It brings attention to your cause in excess of what it would otherwise get.
  Success Sequence writing, like so much other writing on poverty, proceeds by cherry-picking some
characteristics that are more prevalent among those in poverty and then identifying those characteristics as the
“causes” of poverty.

 The problem with this type of theorizing is that it ignores the role of the system. Any given cause you identify
can only result in poverty if the economic system allows it to do so. Thus, in all cases, the way we have set up
the economic system to distribute income in society is a necessary cause of any observed poverty.

What Is the 'Success Sequence ' and Why Do So Many Conservatives Like It?
Brian Alexander

 The slogan refers to a time-honored series of life events: graduating from high school (at
least), getting a full-time job, and marrying before having kids (in that order), and “success”
has been dened down a little to mean “stay out of poverty.”

 The success sequence conveniently frames structural inequalities as matters of individual

choice

 The way the success sequence rose to prominence as a prescription for poverty says a lot
about the narratives that America tells itself about meritocracy and who’s deserving of
“success.”

 This narrative, that put the responsibility for poverty on the impoverished, has been used to
cuts in government support, thus moving away from debating the structural causes of
poverty

 In a society where so much of one’s prospects are determined by birth it makes sense that
narratives pushing individual responsibility—narratives that convince the well-off that they
deserve what they have—take hold

 Any promotion of personal responsibility and the success sequence should take a back seat
to addressing the growing institutional barriers that make it difficult to raise a family out of
poverty

 Despite this view of the sequence as empty platitude, though, some have a strong
investment in it because it is both a good blueprint for many people and it can, consciously
or not, be used to justify all sorts of inequities