The Rise and Fall of the Self-Regulatory Court

The Supreme Court maintains a set of self-regulatory rules that have fluctuated over time, and each change affects the nature of the Court itself. Self-regulatory rules, as this Article calls them, are informal norms that reflect shared agreements among the Justices about how the Court should function, grounded in normative values and arising because Article III creates the judicial power without specifying how the Court should exercise it. The rules are a subset of "conventions" or "structural norms." Many are well known-the rule of four, stare decisis, secrecy of deliberations, and the practice of dissent-although they have not been understood this way. This Article catalogues the Court's major self-regulatory rules and shows that-apart from stare decisis, which promotes consistency and stability-these rules can be understood to collectively tip the Court toward taking close cases-those in which the outcome may hinge on one vote-and deciding cases under conditions that create space for the clash of views and expression of disagreement on the merits. With the change in membership on the Court, the rules are shifting and breaking down. The Court has a new justification for overruling precedent rather than adhering to stare decisis, and it is also resetting the law through decisions on the "shadow docket" without waiting to decide a case on the merits. Many have noticed, but they have failed to appreciate the resulting transformation in the nature of the Court. This Article argues that we are moving away from our familiar form of common-law Court, predisposed to follow prior precedent, and toward a new form of code-law Court, obligated to follow the relevant law's text above all else. But the Justices are split on whether to treat their obligation to the text as superseding the other self-regulatory rules that govern how the Court functions. This Article contends that these rules are more important than ever to the legitimacy of the Court because they function to moderate the pace of change and promote stability when stare decisis no longer serves to do so. It suggests that the Justices have incentive to re-engage the rules, a modest sort of Court reform that has been underappreciated.