“Reforming the U.S. Supreme Court Through Random Panel Assignment,” Essay, Paul M. Collins, Jr.

On October 27, 2020 Amy Coney Barrett took her judicial oath in the Supreme Court’s East Conference Room. This solidified a 6-3 conservative majority on the Court, which went about making quick progress of dismantling many key precedents that affect American’s everyday lives.

Chief among these was overturning Roe v. Wade (1973) – and the constitutional right to reproductive freedom that it stood for – in 2022. Public reaction to this decision was swift, and approval for the Court dropped dramatically. This pattern has held, with public support for the Court stagnating near historic lows.

Rather than moderate itself after the significant plunge in public support for the Court, the Court’s conservatives have continued to advance the conservative legal agenda. Indeed, the 2025-2026 term of the United States Supreme Court proved to be yet another tumultuous session.

This term will likely be most remembered for the Court’s opinion that essentially ends the Voting Rights Act of 1965. This decision all but ensures the overrepresentation of Republicans in Congress and state legislatures, and the underrepresentation of people of color in the same legislative institutions.

Supreme Court Reform:

Decision like this – and many others – have spurred tremendous interest in reforming the Court.

Proposals include expanding the size of the Court, creating term limits, and enhancing congressional oversight of the Court.

As a scholar of the Court, I’m sympathetic to many of these proposals. For instance, I support term limiting Supreme Court justices. Among other things, this will more closely connect the Court to the public that it governs, helping to ensure the Court’s decisions don’t stray too far from the will of the people.

But I’ve come to realize that many reform proposals often start from knee-jerk reactions to perceived bad decisions. As a result, they often fail to address core structural issues that have enabled the Supreme Court to become such a partisan institution.

Political scientists have long recognized that there are institutional features of the Court that promote the ability of the justices to behave in explicitly ideology ways.

One of these core factors is the lack of a fear of reversal. This means that, when the justices make a decision, they can be all but certain that they will not be overturned. This environment frees the justices to rely heavily on their personal attitudes, and to pursue their political goals.

And this is exactly what we are witnessing the Court’s conservative supermajority do. High profile examples include scaling back reproductive freedom, promoting deregulation, blurring the separation of church and state, and, most recently, gutting the Voting Rights Act.

Simply put, without a credible fear of reversal, the checks and balances system breaks down.

When the Court no longer fears the correction of the legislature or the force of its own precedent, it becomes an institution guided by ideology, not constitutional doctrine.

But, it was not always the case that the Supreme Court lacked a fear of reversal.

Take a look at history, and you’ll find that Supreme Court decisions are not always set in stone. In fact, five different constitutional amendments – the Eleventh, Thirteenth, Fourteenth, Sixteenth, and Twenty-sixth – overturned high court rulings. Congress can also step in with new laws that reverse the Court’s decisions, which is exactly what happened in 2009 with the passage of the Family Smoking Prevention and Tobacco Control Act. This law authorized the federal government to regulate tobacco products, and is credited with helping to decrease Americans’ use of cigarettes. Even the Supreme Court itself changes its mind, such as when it overruled a 1972 decision when it legalized same-sex marriage in Obergefell v. Hodges in 2015.

So, at least in theory, the Supreme Court may have a fear of reversal.

But the political reality is far different.

Historically high levels of polarization and a gridlocked Congress make it extremely unlikely that we will see a constitutional amendment or congressional legislation overturning a Court decision. Furthermore, the Court’s conservative supermajority could endure for decades, leaving the current justices with little fear that a future Court will overturn their decisions.

Random Panel Assignment and the Fear of Reversal:

To instill a fear of reversal in the justices, we should expand the Court and mandate that the justices sit on random, three-judge panels with final ruling power.

Expanding the size of the Court over several presidencies introduces a level of moderation that does not currently exist. And it sends a clear message to the Court’s conservatives that they have gone too far. Indeed, their ideological extremism is directly linked to the Court’s declining legitimacy.

Requiring the justices to sit in randomly-assigned three-judge panels creates a situation in which any given three-judge panel can be overturned by a different three-judge panel in a future case. This creates a fear of reversal.

Here’s why.

In the current system, a justice can be confident their vote is essentially a permanent brick in a wall. With randomly assigned three-judge panels, a justice knows that, if they write a radical opinion unmoored from precedent, a different panel down the road could overturn it. This would render their original opinion irrelevant. Coupling this with Court expansion increases the ideological diversity of those panels. The expectation is that random panels will force the justices to write more moderate, narrow opinions to ensure they stick across future panels.

When three-judge panels get the final word instead of the full Court, the benefits of random assignment really shine. It strips away the chance for an ideological majority to swoop in and take control of the ultimate decision.

How To Do It:

Getting this done is entirely within the legislative power of Congress, although – like all legislation – it would require a presidential signature. Congress has changed the size of the Court throughout the nation’s history, from a low of six judges to a high of ten. And Congress already mandates that U.S. courts of appeals judges hear cases in three judge panels, so this plan would simply apply that precedent to the Supreme Court.

I recognize that this isn’t a perfect plan.

Most notably, it relies on the expectation that the justices care about the legitimacy of the Court. Given that many the Court’s conservatives are openly denying that the Court is a political institution, despite overwhelming evidence to the contrary, this might be overly hopeful. If so, the plan will fail as policy-motivated justices will likely partake in a form of gamesmanship that will result in three-judge panel after three-judge panel constantly reversing each other.

And, enacting this reform would require a gridlocked Congress to take action. The problem here is that Congress has largely abdicated its role, opting instead for an America governed by judicial edict and executive orders.

Nonetheless, expanding the size of the Court and having the justices sit in three-judge panels gets at an issue that is largely being ignored in debates about Supreme Court reform: how to instill a fear of reversal in the justices. Rather than relying on Congress or the president to do the reversing, it turns to the Court itself, and asks the justices for a reset.

With public confidence in the Court hovering at record lows, this might be exactly the change we need.

Paul M. Collins, Jr. is a Professor of Legal Studies and Political Science at the University of Massachusetts Amherst.

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