Professor Brian Sheppard

Professor Sheppard publishes op-ed on Supreme Court Reform at The Hill

The Supreme Court is experiencing a favorability crisis tied to the current composition of the Court.

July 21, 2022

In a new op-ed, Professor Brian Sheppard takes a pragmatic approach to the problem of slow turnover at the Supreme Court: offering retirement buyouts.

According to Professor Sheppard, the Supreme Court is experiencing a favorability crisis tied to the current composition of the Court.  He notes, “Recent polling revealed that its public approval is at an all-time low, and that was before its latest week of controversial rulings.   Notably, the most pronounced turn in favorability coincided with the recent shift to a 6-3 split in favor of Republican-appointed justices.”

Professor Sheppard argues that the problem will continue so long as the justices continue to time their retirements to further their own political interests by waiting until their favored party occupies the Oval Office.  “Were they to wait until health or age forced them into the retirement calculus, Justices Ketanji Brown Jackson and Amy Coney Barrett would likely serve on the Court for 35 years or more.”  Long tenures on the Court are problematic. “The judiciary is our least democratic branch by design, but extended stays on the Court greatly increase the probability that the values and ideologies of our justices will radically depart from the will of the majority.”

To remedy this, he proposes that Congress offer justices substantial buyouts for retirement at ten years of service and immediate buyouts to the five justices who have already passed ten years. He points out that, unlike oft-discussed punitive measures like Court-packing or term limits, buyouts can be passed through reconciliation as a budget item and bring turnover without threatening judicial independence.

While he concedes that “[o]ffering large sums of public money to the powerful is not an ideal solution,” he believes that “legislative impasse forces us to consider second-best measures.”