Published online in Wisconsin Law Review.

Abstract

Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and law-based actor. In doing so, it has crowded out alternative and more realistic stories of the value the Supreme Court actually adds to our system of self-government, making it difficult for proposals to change the Court to get traction in the public imagination. But the Constitution itself positions the Court within our system of checks and balances, not outside it. Reminding Americans of the ways the Constitution balances judicial independence and judicial accountability to constrain judicial overreach enables Supreme Court-reform advocates to reclaim the narrative— and, perhaps, the initiative—in the ongoing American debate about the Court and Constitution’s role in our system of self-government.

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