The Washington PostDemocracy Dies in Darkness

Opinion There is a path to save the Supreme Court from itself

Nadine Seiler of Waldorf, Md., protests in front of the Supreme Court on Wednesday. (Andrew Harnik/AP)
8 min

The Supreme Court’s right-wing majority has been on a tear lately. In the last week alone, Justice Samuel A. Alito Jr. made inappropriate wisecracks during oral arguments about whether a web designer can object to working with gay couples, and several right-wing justices seriously considered adopting a once-fringe legal theory that could upend how state courts oversee elections. Allegations also recently emerged that in 2014, Alito leaked the outcome in the court’s Hobby Lobby/ case to a group of right-wing donors (which Alito denied).

Fortunately, there is no shortage of ideas to return sanity to the court. And there has never been a better time to advance them to the public.

As Maya Wiley, head of the Leadership Conference on Civil and Human Rights, explains, “The Supreme Court is now far out of step with the American mainstream and has, as a result, become the best organizer of its own court reform campaign.” Given the many ongoing scandals, such as leaked opinions and Justice Clarence Thomas’s refusal to recuse himself in cases involving his wife’s activism after the 2020 election, Wiley notes, “More Americans believe term limits, transparency and ethics reform are good ideas.”

The stakes couldn’t be higher. The court’s pattern of self-inflicted wounds erodes its credibility and undermines its stature. As the progressive Brennan Center for Justice put it, “The lack of structural democratic accountability is much of the reason why we ended up with a Court so out of step with the public and with mainstream legal thought. But it could also spell a crisis for the Court’s own legitimacy, spurring new attention to the broken system that gave us today’s radical supermajority and garnering momentum for efforts at Court reform.”

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The good news is that there has been a concerted push to make what used to be a wonkish debate in legal circles about judicial reform a central political issue. Three main avenues for reform have emerged:

Eliminate lifetime tenure for justices

Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements. Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed.

Ian Bassin of Protect Democracy, a nonpartisan pro-democracy group, tells me that Supreme Court term limits have gained wide support. “Supporters of the idea run the ideological gamut from Senator Cory Booker to Federalist Society co-founder Steven Calabresi,” he says. “The idea also generated broad support in the recent presidential commission on court reform.”

This is also gaining broader support among the public. A Monmouth University poll in September found that 2 in 3 Americans favor term limits.

One popular suggestion is to limit justices to 18-year terms — long enough to maintain independence but not to prevent new justices from refreshing the court. The terms could be staggered so as to give presidents regular opportunities to appoint justices. This, however, might require a constitutional amendment, although supporters argue it can be done by statute.

Expand the court

A recent Marquette University Law School national poll showed that 51 percent of Americans (including 72 percent of Democrats) favored expanding the number of justices on the Supreme Court. And unlike term limits, which might require a constitutional amendment to achieve, there is no dispute that Congress has the power to enlarge the court.

The number of seats on the high court is not set in stone. It was set at nine when the nation had nine circuits (there are now 13). And Republicans effectively reduced the number to eight when they refused to consider President Barack Obama’s nomination of Merrick Garland to the court in March 2016.

Members of the presidential commission on the Supreme Court were candid about this reform: Court expansion would be the most effective means to dilute the influence of the current right-wing majority. The commission also noted that it could provide more diversity on our highest court, which is very small compared with those of other developed democracies.

Democracy itself has been threatened by politically compromised justices acting far outside the bounds of neutral referees. The commission reports:

[Critics] maintain that the Supreme Court has been complicit in and partially responsible for the “degradation of American democracy” writ large. On this view, the Court has whittled away the Voting Rights Act and other cornerstones of democracy, and affirmed state laws and practices that restrict voting and disenfranchise certain constituencies, such as people of color, the poor, and the young. This has contributed to circumstances that threaten to give outsize power over the future of the presidency and therefore the Court to entrench that power. . . .
Antidemocratic developments risk entrenching the judicial philosophy of the current Court majority for generations, while advantaging one political party.

For those who say expansion would politicize the court, remember that the court has already been politicized. Consider how we got here: Senate Republicans in 2016 refused to fulfill their constitutional duties to render advice and consent on Obama’s nominee on the grounds that voters should have a say, and then rushed to install Justice Amy Coney Barrett in 2020 even after early voting for a new president was underway. Court expansion would be simply be a corrective action to return it to its pre-MAGA incarnation.

And for those who caution that Republicans, should they regain full control of Congress, could retaliate and expand the court further: This is a reasonable concern, but as Brian Fallon, co-founder and executive director of the progressive group Demand Justice, tells me, if that happens "we’re no worse off than we are now.”

Implement ethics rules for justices

Ethical guardrails already exist for federal courts in the form of the Code of Conduct for U.S. Judges, as Glenn Fine explains in the Atlantic. This includes “conduct both on and off the bench, including requirements that judges act at all times to promote public confidence in the integrity and impartiality of the judiciary.” But the Supreme Court’s adherence to the code has no means of oversight or enforcement.

Here is where the Supreme Court’s cry for “independence” is most self-serving. Congress is “independent," but it has ethics rules and an enforcement mechanism. Same goes for the executive branch, which is subject to ethics laws such as the Hatch Act. Judicial independence should not mean freedom to act with impunity.

Consider Fine’s ingenious suggestion: “The judiciary as a whole should be subject to inspector-general oversight — to investigate alleged misconduct and to promote efficiency throughout the judiciary’s administrative operations, not to second-guess any judicial opinion.” He describes the ideal candidate: “an experienced, permanent, internal judiciary inspector general, potentially reporting to the chief justice." Perhaps retired justice Stephen G. Breyer could fill such a role.

Rakim Brooks, who heads the progressive group Alliance for Justice, points to an existing entity that could take up this task: the Judicial Conference, which is headed by the Supreme Court chief justice and composed of the chief judge of every circuit, the chief judge of the Court of International Trade and a district judge from each regional judicial circuit. The body addresses a host of policy and management issues for the federal courts, such as allegations of personal misconduct by federal judges. That or a similar body could administer a mandatory code of ethics for the high court and demand greater transparency in recusal decisions without compromising judicial “independence.”

This could be done by statute, or the Supreme Court could be obliged to adopt it by virtue of public pressure.

The path forward

None of these reforms is radical. The Brennan Center observes: “The U.S. Supreme Court is an international outlier in many respects when compared to the high courts of other countries, including how much authority justices wield — and for how long.” Moreover, the public has never been so engaged on the issue, as the reaction to the court’s decision to overturn abortion rights has shown.

For Fallon, the path forward for court reform needs to be “all of the above.” For those skeptical that such change is politically possible, he counters that court expansion has gone from an offbeat position held by a few progressives to a near-unanimous pledge among Senate Democratic candidates. Meanwhile, legal groups that were once hesitant to challenge the court, such as Public Justice and Lambda Legal, have come around to support reform.

Over the next year or so, Fallon’s group will hold scores of events with lawmakers and progressive reformers and run digital ads to highlight court scandals. The goal is to try to double co-sponsors for judicial reform legislation in Congress (currently there are about 70). A vigorous ad campaign could also help average voters understand how arrogant and partisan justices have become. On Monday, for example, Demand Justice released an ad highlighting the testimony before the House Justiciary Committee by Robert L. Schenck attesting to his influence campaign on the high court’s right-wing justices.

The goal should be to rebuild the public’s confidence in the rule of law. There is arguably no more important task. It’s time to start preparing the public to save the Supreme Court from itself.