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Online Vol. 105

Cornell Law Review Online

A Tale of Two Courts

Deepa Das Acevedo

, , , ,

1 Mar 2020

The world’s oldest democracy and the world’s largest democracy are admittedly different places. One is geographically expansive and demographically changing; it features a presidential system of governance and reflects a general assumption that the state ought to stay out of peoples’ lives wherever possible. The other is geographically smaller (though not small) and riven by religious and linguistic divisions more than by race or national origin; it features a parliamentary state that is, in large part, designed to actively reform the society it governs.1GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 214 (2010) (discussing constitutional identity and, in particular, “the Indian and American cases, both of which contain preservative and transformative elements, the latter predominant in India and the former in the United States”).

Both, however, are experiencing rising tides of nativism and polarization led by genre-defying politicians who command cultish appeal and are widely believed to be weakening the fundamental principles of democratic governance.2On the growing polarization of politics in America, see Timothy Williams, With Most States Under One Party’s Control, America Grows More Divided, N.Y. TIMES (June 11, 2019), https://www.nytimes.com/2019/06/11/us/state- legislatures-partisan- polarized.html?action=click&module=Top%20Stories&pgtype=Homepage [https://perma.cc/2RLF-JL68]. Both share a Common Law system rooted in a linked colonial past as well as a strong commitment to judicial review and the rule of law. Most of all, both are facing active and profound crises of confidence regarding their apex courts.

This Essay evaluates a recent pair of proposals for how to fix the Supreme Court of one country (America) in light of the experiences of the Supreme Court of the other country (India).3Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 181 (2019). To be sure, we cannot directly transpose best practices from one country to the other, given the contextual differences described above, among others. But—thanks to the different paths taken by the American and Indian courts4Nick Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts, 61 AM. J. COMP. L. 173, 175 (2013) (noting that while both courts share roots and characteristics, “[t]hey have evolved. . . so that today they represent extreme ends of the type of structural characteristics found in supreme courts”).—we can learn something from the comparison, which in a very practical and tangible way reveals complications that as yet may seem purely hypothetical to American audiences. My goal is not to wholly reject either of the proposals so much as it is, in the tradition of comparative legal scholarship, to offer insights and cautionary notes based on lessons learned elsewhere.

Part I briefly recaps four earlier approaches to reforming the U.S. Supreme Court against which the recent proposals measure themselves, and it also highlights some of the objections against those earlier approaches. Part II describes the two proposals in question—the Supreme Court Lottery and the Balanced Bench—and outlines some general concerns one might raise in response. My focus here is on whether the proposals are desirable, not on whether they are constitutional. Part III first sketches an outline of the Indian Supreme Court, before using specific examples from the Court’s history to illustrate potential shortcomings in either the Supreme Court Lottery or the Balanced Bench.

References   [ + ]

1. GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 214 (2010) (discussing constitutional identity and, in particular, “the Indian and American cases, both of which contain preservative and transformative elements, the latter predominant in India and the former in the United States”).
2. On the growing polarization of politics in America, see Timothy Williams, With Most States Under One Party’s Control, America Grows More Divided, N.Y. TIMES (June 11, 2019), https://www.nytimes.com/2019/06/11/us/state- legislatures-partisan- polarized.html?action=click&module=Top%20Stories&pgtype=Homepage [https://perma.cc/2RLF-JL68].
3. Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 181 (2019).
4. Nick Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts, 61 AM. J. COMP. L. 173, 175 (2013) (noting that while both courts share roots and characteristics, “[t]hey have evolved. . . so that today they represent extreme ends of the type of structural characteristics found in supreme courts”).

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