Court Reform

 The untimely death of Ruth Bader Ginsburg and the rushed, nakedly political power grab of confirming Amy Coney Barrett in the week before the election has people considering how to unpack a conservative court. If there has been one thing that Trump has truly provided for the GOP, it's the Courts.

This scholar makes an interesting pitch for true reform. What you could do is leave the current "Supreme Court" as the last court of appeals for normal judicial procedures. Maybe you add a couple of judges just to make sure. But you take judicial review - the process by which the Court determines whether an executive or legislative act is constitutional away from the current Supreme Court. Instead, you create an entirely separate body - a Constitutional Court - that does abstract review. 

Currently, the Supreme Court hears cases on appeal - concrete review. That means a plaintiff sues and the case makes its way slowly to the Supreme Court. This is why we are still hearing cases about the Affordable Care Act a decade after the law was passed. Instead, the Constitutional Court would determine the constitutionality of a law as soon as it is passed. Quite a few countries that use code law (as opposed to common law) use abstract review, because it adds certainty to the legislating process. Why should we wait for several years to find out whether a law is constitutional or not?

Judicial review is not actually IN the Constitution. While Article III calls for a single Supreme Court, it does not forbid the creation of a second court that could hear abstract review. 

Two tricky things remain. First, you would have to find a way to reconcile cases that make their way through the Circuit courts via appeal to the Supreme Court that do have some constitutional grounding. What happens with equal protection cases that start in the states? At what point does the case switch from the normal appellate process into judicial review? Obviously, the Constitutional Court would be superior to the "Supreme" Court when it came to reviewing the constitutionality of laws. But Congress would have to lay out a process for determining when and how the Constitutional Court could preempt the Supremes on certain cases. 

The second hurdle would be finding a way to depoliticize the appointment of judges to the Constitutional Court. Maybe it's a 9 judge panel, with three GOP appointed judges, three Democratic appointed judges and three chosen from academia as the middle arbiters of constitutional precedent. 

Judicial review was mostly assumed by the Framers, but it was never explicitly written into the Constitution. Congress has - to a degree - ceded many important functions to the Executive AND the Judiciary. (Rather than legislate marriage equality, they punted it to the Courts, for instance.) We need to reinvigorate Congress as an equal branch of government. Some of that would be helped by a Constitutional Court whose entire job is helping the Congress and Executive know immediately where the guiderails are. Trump, for instance, has largely shielded his finances because of endless appeals and re-hearings. A Constitutional Court empowered to deal with separation of powers issues could've cut through this years ago. 

"Court Reform" has become code for adding justices. Instead, we should think bigger and create some order in the current ad hoc madness of our judicial system.