Shuffling the deck for a fairer game: a modest proposal to fix the supreme court by adding four randomly assigned circuit court judges per term

A key feature of the United States Supreme Court is that it has a small group of justices who, with limited exceptions, vote on every case before it. With lifetime appointments for those justices set by the Constitution—a marked contrast to state approaches to the judiciary—the composition of the entire Court traditionally changes slowly, and thus the members’ views and the Court’s likely outcomes become predictable. This type of predictability of the Court is too often mistaken by academics and lay-observers alike as stability of the law itself or precedent generally. Nothing could be further from the truth—a static Court erects fragile, idiosyncratic precedent prone to collapse at the tectonic shift caused by a justice’s retirement or demise. Muttering the words “stare decisis” will neither magically buttress the law nor restore stability. We have already witnessed crumbling precedent, and it is fairly obvious the landslide has only just begun. This piece sets out the problems of a predictable Court and offers a solution of four rotating justices grounded in the random-selection approach employed at nearly every other level of the federal judiciary.