The supreme court has concluded another term that upended Americans’ lives.
Last week, the court’s conservative supermajority ruled against race-conscious decisions in college admissions, overturning decades of precedent supporting affirmative action. A day later, the six conservative justices both struck down Joe Biden’s student debt forgiveness plan and sided with a Colorado-based business owner who wanted to refuse service to same-sex couples.
As the conservative justices’ decisions attracted criticism, their behavior away from the bench also sparked alarm. Reports emerged that conservative justices Clarence Thomas and Samuel Alito had accepted previously undisclosed gifts and trips from wealthy stakeholders whose business interests at times clashed with cases before the supreme court.
The outcry unleashed over the justices’ ethics scandals, combined with the widespread disapproval of their opinions, has intensified calls to reform the supreme court. And although court reform efforts have previously been denounced as radical overreach, more Americans are warming to the idea in the face of a six-three conservative supermajority issuing decisions viewed as largely out of step with the country’s principles and priorities.
“Democracy is at risk,” Congressman Hank Johnson, a Democrat in Georgia, said. “We must save this supreme court from itself, and that’s why it’s so important that we do court reform now.”
Confidence in supreme court plummets
The combination of contentious rulings and dubious ethical behavior has culminated in plummeting ratings in that other all-powerful court: the court of public opinion.
Gallup has yet to release its latest poll in the wake of the slew of recent ethics scandals and aggressive decisions released in the final days of the 2022-23 term. But the historical trend of its surveys gives a clear picture. In 2001, under Chief Justice William Rehnquist, 62% of Americans approved of the way the supreme court handled its job, according to Gallup; by last September that had fallen to just 40%.
Such a profound dip in popularity has ushered in a proportionate rise in demands for reform, ranging from calls for ethical guardrails for the justices to proposals for a radical makeover of the court’s structure and size. One Economist/YouGov poll taken in April found that 69% of Americans support an ethics code for supreme court justices. Another AP-NORC poll taken last year showed 67% of Americans back term limits for the justices, and a Marquette Law school survey released last September found that 51% of Americans agree with calls to expand the court.
Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates for reform, said that a growing perception that the conservative justices are acting more as politicians than as judges was driving the calls for change.
“I’ve been beating this drum for almost 10 years, and it is definitely getting louder. The series of recent events have left no doubt today that the supreme court is a political body, and it is only rational to want the justices to have to follow the same ethical rules that politicians follow.”
As things currently stand, the nine supreme court justices are the only judges in the country – including both state and federal – who are not bound by any formal ethics code. The justices remain essentially unbeholden to any higher power.
In April, the current chief justice, John Roberts, refused to appear before the Senate judiciary committee to discuss the ProPublica revelations about Thomas’s luxury holidays courtesy of the billionaire Republican donor Harlan Crow. Roberts insisted that he and his fellow justices “consult a wide variety of authorities to address specific ethical issues” – without addressing the main problem with that argument: that such consultations are entirely voluntary and self-policing.
Ethics groups like Fix the Court have despaired of Roberts taking a lead on ethics reform, and are now pleading with Congress to force the issue. Roth said the current malaise was so profound it had gone beyond merely extending the existing code of ethics that, since 1973, has applied to all other federal judges.
Now, he said, it had to be enforceable, with “a mechanism for reprimand when there are violations”. “There needs to be a more strict rubric telling justices what they can and cannot do when it comes to flying around on billionaires’ planes or staying in their luxury resorts,” he added.
Requiring the justices to abide by clear ethical boundaries might clean up some of the grubbier optics but it would not get to the substantive problem that progressive critics have levelled at the court – its ultra-conservative rulings. “Right now we have nine kings, who can set policy for eternity – their rulings cannot be undone in constitutional cases by the president or Congress,” said Caroline Fredrickson, a law professor at Georgetown University.
Like Roth, Fredrickson has observed a sea change in attitudes towards reforming the nation’s most powerful court. “Five years ago, this was a discussion more for academics than for activists. I don’t think that’s true any more – we’ve had a series of decisions that have finally brought the American public to recognise that the court is out of control.”
Fredrickson was one of a bipartisan group of 36 legal and other scholars who Joe Biden invited in April 2021 to form a presidential commission on supreme court reform. One of the key proposals that the commissioners analysed was the idea of expanding the court from its current nine members in order to rebalance the court in tune with the will of most Americans.
The commission’s final report points out that Congress has made changes to the size of the court since as early as 1801. The current nine has been set since 1869, but there is no reason that Congress could not change that number through simple statute.
Commissioners were divided on the subject of expansion. Some argued that adding seats was essential to make the court relevant again and prevent the erosion of democracy, while others feared it would undermine the supreme court’s independence and legitimacy.
Fredrickson comes firmly down on the side of expansion. “The only realistic option for protecting our democracy is to expand the number of justices, which would allow the appointment of justices with a firmer grasp of the need to be properly deferential to the elected branches,” she said.
Aligned to the question of how many justices sit on the court is the issue of their longevity in the position. The US constitution says that federal judges should hold their office “during good behavior” – a phrase that has been interpreted as meaning for their lifetimes.
A new report from the Brennan Center spells out how life tenure has led to increasingly long terms, and with it an increasingly undemocratic court. For the first 180 years of US history, the average service for supreme court justices was 15 years; today that has risen to 26 years and the current crop could serve on average 35 years.
With long terms has come a democratically skewed judicial panel. Since the presidency of George HW Bush, Republicans have won four out of nine presidential elections – only two prevailing in the popular vote – yet they have appointed six out of today’s nine justices.
The Brennan Center recommends a new interpretation of “during good behavior”. Justices continue to serve for life, but after 18 years of actively judging cases they step back into a more supporting role – a “senior” status that has been applied to lower court judges for more than 100 years.
Under Brennan’s formula, that would be coupled with regular appointments to the bench made every two years, so that each president would have two appointments per four-year term. That could instantly put an end to the ugly hyper-partisan infighting and obstructionism that saw the Republican Senate block Merrick Garland’s appointment by Barack Obama in 2016.
But many progressive activists argue term limits alone will not provide an immediate remedy to their concerns. They accuse Republicans of having “stolen” the court by refusing to consider Garland’s nomination and then fast-tracking the confirmation of Justice Amy Coney Barrett days before Biden won the 2020 election. One academic study concluded that, barring congressional intervention, the supreme court may not see a liberal majority until 2065.
“Even if you passed a term limits bill with a code of ethics, it wouldn’t do much to put a dent into what is right now a Republican supermajority,” said Brian Fallon, executive director of the progressive group Demand Justice. “If you want to restore balance to the court, if you believe that the Republicans arrived at this six-three supermajority through illicit means, then court expansion becomes necessary to achieve balance anytime soon.”
Political momentum builds for court reform
As Americans continue to reel from the court’s decision last year to overturn Roe v Wade, terminating federal protections for abortion access, the reproductive rights groups Naral Pro-Choice America and Planned Parenthood have both come out in favour of court expansion.
“We’ve known for a long time that reproductive rights and freedom are completely intertwined with the supreme court,” Naral’s president, Mini Timmaraju, nsaid. “We’ve become really clear-eyed that it’s not responsible for us to be an organisation that promotes and advocates for advancement of reproductive freedom without engaging seriously in discussions around the court.”
Naral was one of dozens of groups to sign on to the “Just Majority” project, which held events across the country this spring to advocate for court reform. The campaign included a diverse array of leaders from across the progressive movement, including racial justice organisations such as Color of Change and gun safety groups like Newtown Action Alliance.
“We have to start coming to terms with just how much of a democracy we still don’t have,” said Rashad Robinson, president of Color of Change. “We have an unelected, unaccountable, corrupt body of people that stand in the way of democracy, stand in the way of justice and stand in the way of the will of the people.”
To advance their court reform efforts, groups like Demand Justice followed the playbook of activists who lobbied against the Senate filibuster. By convincing more progressive groups to sign on to the campaign, court reform advocates have been able to persuade more Democratic lawmakers as well.
Russ Feingold, a former Democratic senator of Wisconsin who served on the judiciary committee, counts himself among the converted. Feingold, now the president of the American Constitution Society, said he was uncomfortable with the idea of term limits or court expansion as recently as a couple of years ago.
He said: “People who have been much more cautious about this in the past have come to the conclusion that, if you simply allow this kind of a situation to continue for the next 20 years or so, with justices who are very ideological, very political and also in some cases unethical, then you are allowing a whole generation or more to be locked away from having a legitimate impact on the law.”
Some of Feingold’s former congressional colleagues have adopted the same mindset. In the House, Johnson has introduced a suite of bills aimed at overhauling the court through adopting a robust code of ethics, establishing term limits and adding four justices to the bench. One of Johnson’s progressive colleagues, congressman Ro Khanna of California, reintroduced his own term limit proposal last week in response to the dismantling of Biden’s student debt relief programme.
Asked about the possibility of expanding the court, Khanna told the Guardian: “I think everything has to be on the table, but I think the supreme court term limits is the most likely and where we should focus our energy.”
But Johnson, like Fallon, takes an “all of the above” approach to reforming the court. “We need to do both,” Johnson said. “We need to unpack this court, and we need to expand this court because that will help us right now.”
Even as more Democratic lawmakers have endorsed court reform, the leader of their party has remained notably quiet. During the 2020 campaign, Biden shied away from backing court expansion, and progressive activists viewed his formation of the commission to study reform proposals as a “punt”.
Still, even a longtime institutionalist like Biden has had his faith in the court tested. After the conservative majority issued its decision ending affirmative action, Biden described the current court as “not normal”. He later told MSNBC that this court has “done more to unravel basic rights and basic decisions than any court in recent history”. However, he added that expanding the court would be “a mistake”.
Fallon believes the president will be “the last domino to fall” in backing court reform. But Fallon predicted Biden’s endorsement of court reform will become “inevitable” in response to growing public outrage
“You can’t hide your head in the sand,” Feingold said. “When the court’s been stolen, when it’s been politicised, when it has the worst ethics reputation it’s had in memory, then unusual measures have to be taken – not to recapture the court for the other side of the political agenda, but to restore the legitimacy of the court.”
