Papering Justices

Authors

Michael L. Smith

Abstract

Supreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the judge overseeing their case. These requests are to be granted automatically without any showing of facts, hearings, or further briefing. This is known as “papering” the judge. Drawing from these practices, I propose that each side to a dispute before the Supreme Court get one opportunity to challenge and automatically disqualify one Justice from participating in the case.

I argue that this approach of “papering Justices” is likely constitutional, and, therefore, preferable to other reforms that likely require constitutional amendments. I survey potential benefits of papering Justices, including the potential greater institutional consensus, for disqualifications to serve as an outlet for concerns over Justices’ misconduct, and the benefits the reform may have for transparency and power dynamics.

Papering Justices isn’t without its potential drawbacks, however. I address these drawbacks and unintended consequences, including the question of whether papering Justices would make any meaningful difference to case outcomes, concerns over rule of law and the precedential value of four-Justice opinions, and the possibility of party reluctance to paper Justices. While some of these drawbacks may raise genuine concerns for the reform, I highlight how many of these arguments against papering Justices reflect on current practices. Even if papering Justices doesn’t take hold in the immediate future, debating the policy sheds much-needed light on the practices, doctrine, and assumptions undergirding modern Supreme Court proceedings that are themselves worthy of critical reexamination.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Michael L. Smith, Papering Justices, 50 BYU L. Rev. 681 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss3/8