Polarization of the Courts: "Neutrality Fatality"

Abstract

Polarization is a term we find ourselves quite familiar with these days. While different perspectives can be healthy, our nation has seen a level of divide that has started to destroy the very institutions on which this country was founded. The Framers envisioned the judicial branch to be a neutral arbitrator of the law, apart from the whims and emotions of the people. However, we now have a Supreme Court composed of politics instead of justice and rulings based on political preference rather than on constitutional interpretation. In an effort to save our great judicial institution, legal scholars Daniel Epps and Ganesh Sitaraman have proposed a “balanced bench” solution and legal scholars Roger Cramton and Paul Carrington have proposed a “term limit” solution. While both of these solutions are strong, they are in of need of fine-tuning. In this essay, I refine them to arrive at the best possible solution to the polarization problem.