“Reforming” SCOTUS

Critics displeased with the Supreme Court’s decisions claim that the Court is in “crisis” and propose various “reforms” to fix it. However, the real crisis the Court faces is not of its making but the work of the political branches, which have undermined it by turning the appointment process for Justices into a hyper-partisan farce. The remedy is not in the so-called reforms advocated by the Court’s detractors, most of which would exacerbate the damage already done to the Court. A better, much-needed reform is to reinstate the bipartisan principles that governed judicial appointments for decades.

The Supreme Court has been in the political crosshairs since its conservative wing became ascendant, leading to a rash of proposals to “reform” it. Early in his term, President Biden established a commission to study these proposals. His commission produced a lengthy report that analyzed them but offered no conclusions or recommendations.

Since then, controversy over the Court and pressure from its critics have intensified. Shortly before dropping his reelection bid, President Biden backed several proposals, including constitutional amendments to nullify the Court’s decision on presidential criminal immunity and to subject the Justices to term limits.

Senate Democrats, along with critics of the Court in academia and the media, have gone further. If Democrats win control of the presidency and both houses of Congress this year, the Supreme Court will remain a prime target. Senate Democratic Leader Chuck Schumer vowed that going after the Court will be “a very big priority” in the next Congress.

Reform proposals range from outrageous ideas that would threaten the Court’s independence and integrity to a couple that have at least superficial appeal. While ostensibly aimed at saving the Court from itself, all are advanced by its detractors on the left who ultimately seek to shift the Court’s ideological balance back to the liberal side that was dominant for so long.

The detractors insist that the Court faces “crises” in legitimacy, ethics, and public confidence. These are red herrings. Concerns over the Court’s “legitimacy” are based mainly on often overwrought disagreement with its decisions. A prominent law school dean describes the Justices as “political hacks.” Law professors claim to be unable to teach the Court’s decisions as valid law. Senator Schumer once threatened several Justices by name. The supposed ethics crisis is largely a media construct. The alleged crisis in public confidence is driven primarily by Democratic opinion.^[1]See here and here.

This post explores the main reform proposals offered so far. It concludes by offering an alternative reform to address the one genuine crisis the Court faces: the shameful efforts by both parties over recent decades to politicize it by destroying the bipartisanship that once characterized judicial appointments.      

Legislatively “overruling” Constitution-based Supreme Court decisions

The most outlandish reform proposal, embodied in a bill introduced by Senator Schumer with the support of a majority of Senate Democrats, would overrule by statute the Supreme Court’s decision that the Constitution grants presidents broad immunity from criminal prosecution. While this decision may well be wrong, the notion that Congress can exercise appellate jurisdiction over the Court is absurd. The bill is so obviously unconstitutional that if it was somehow enacted into law no court would uphold it. Even President Biden recognized that overturning the decision requires a constitutional amendment.  While this proposal may be nothing more than political grandstanding, it shows how far critics will go in attacking the Court.^[2]See here for more on this proposal.

Adding Justices to the Court (aka “court-packing”)

This proposal constitutes another outrageous attack on the Court’s independence and integrity. It would reduce the Court to a mere extension of the political branches.^[3]See here for background. Unlike the first proposal, however, it poses a very real threat since Congress actually has the power to enlarge the Court. 

Court-packing has a sordid history going back to the infamous FDR scheme of the 1930’s that was soundly rejected. While most Americans still oppose this awful idea, it’s gaining traction among Democrats.^[4]See here and here. One prominent Democratic senator, Ron Wyden, has already introduced a court-packing bill.  Vice President Harris ducked a question on whether she would support court-packing, but said there should be “some kind of reform” of the Court. 

Term limits for the Justices

Unlike court-packing, term limits enjoy broad public support although Democrats are more supportive than Republicans and independents. This proposal has some appeal as a conceptual matter. Life tenure for public officials is very rare, and in the United States almost unique to federal judges.^[5]Most state judges are subject either to term limits or a mandatory retirement age. On the other hand, the Nation has survived over 200 years of life-tenured federal judges without significant problems. And if life tenure is now problematic shouldn’t term limits be imposed on lower court federal judges as well as the Justices?

The real motivation here, however, is not concern over life tenure per se but the need to somehow address the partisan hash that the political branches have made of Supreme Court appointments. Term limits proponents seem to accept that the appointment and confirmation process has become irreversibly politicized and believe the solution is to give future presidents equal opportunity to make it even more so by tying appointments to presidential election cycles and results.

The leading proposal is for Justices to have 18-year terms staggered in a way that allows each president to appoint two Justices per presidential term. This would take years to become fully effective and might never achieve its goal. For example, there is no way to force the Senate to confirm nominations within the proposed cycle (or at all, for that matter). Term limit schemes pose many other implementation challenges as described in the Biden commission report.     

The most obvious challenge facing any legislative term limits proposal is its constitutionality. While Court critics maintain that Congress could enact some sort of de facto or functional term limits by legislation, the predominant view is that a constitutional amendment would be required.^[6]See here for background. Legislatively imposed term limits would be particularly constitutionally suspect if Congress attempted to apply them to the sitting Justices.       

A binding, enforceable Supreme Court ethics code

This proposal also has wide public support. After all, who would oppose the notion that the Justices should act ethically? However, the asserted rationale that the Court faces an “ethics crisis” is  hyperbole, and in any event, the few arguably valid concerns in this area have been addressed.

Allegations of ethics abuses center on just two of the nine Justices–unsurprisingly, the two most conservative, Alito and Thomas–and they have little substance. Apart from issues relating to financial disclosure reporting, the ethics “scandals” either fall into the nebulous and largely subjective area of appearances^[7]See here. or constitute outright media concoctions.^[8]See here and here.  

Regarding financial disclosure, the Justices are subject to the same reporting requirements under the Ethics in Government Act as lower court judges and most other federal officials. The Act carries civil and criminal penalties for willful failure to report or false reporting.^[9]See here for background. There is no evidence that any reporting omissions by the Justices were willful. In fact, some arguable omissions resulted from ambiguities in the reporting criteria that have since been clarified.

Regarding potential conflicts of interest, the Court responded to its critics by adopting an ethics code of its own in November 2023 notwithstanding the lack of evidence of abuses. The Court’s ethics code generally follows the ethics rules applicable to other federal judges.^[10]See here for an analysis of both. However, the critics complain that the new ethics code lacks enforcement mechanisms.

The key focus here is on recusal. Justices, like lower court judges, are required by law to recuse themselves from cases if certain specific conflicts exist or, more generally, whenever their “impartiality might reasonably be questioned.” However, recusal carries unique consequences for a Justice. While lower court judges who recuse can be replaced, there is no substituting for a recused Justice. Since recusal of a Justice leaves only eight votes to decide a case and can have a major impact on its outcome, the bar for recusal must be high. Unlike lower court judges, a Justice cannot simply err on the side of recusal. The Court’s ethics code recognizes this, stating that a Justice “is presumed impartial and has a duty to sit unless disqualified.”

Recusal decisions now rest at the discretion of each Justice, but the Court’s critics want some way to force recusal. This could create a form of reverse court-packing: instead of adding ideologically friendlier Justices, attempt to subtract those deemed hostile. However, any initiative to impose a recusal process on the Court would raise serious constitutional issues. Under separation of powers principles, it’s doubtful that Congress can dictate how the Court handles recusals any more than the Court can regulate internal congressional procedures.^[11]One modest step the Court itself could take for more transparency is to require Justices to provide explanations when they reject recusal motions, as they have sometimes voluntarily done.      

In contrast to the foregoing, there is one reform that could actually benefit the Court

The “reforms” discussed above, and similar ones advocated by the Court’s detractors,^[12]The Biden commission report describes several other ideas to restructure the Court or alter its processes. The Wyden court-packing bill includes several more as well. are solutions in search of a problem. None would clearly improve the Court and most would do it great harm. With the (frightening) exception of court-packing, they also are mainly dependent on constitutional amendment and thus highly unlikely to be implemented. 

There is, however, a constructive reform that would go a long way toward depoliticizing the Court: Restore the merit principles and 60-vote threshold for Senate confirmation that were for many years the norm for Supreme Court (and other judicial) appointments.

Until recent decades, both political parties accorded presidents considerable deference regarding their nominees to the Court as long as the nominee was well qualified substantively, ethically and temperamentally fit, and within the mainstream of legal thought. Additionally, the 60-vote threshold for confirmation ensured some bipartisan support. These principles usually (though not always)^[13]See Bork and Thomas. resulted in relatively noncontroversial confirmations of ideologically diverse nominees. For example, both Ruth Bader Ginsburg and Antonin Scalia were confirmed by overwhelming majorities.      

The political parties share equal blame for the erosion of these principles over the years to the point that Supreme Court appointments and confirmations have been reduced to a wholly partisan farce.^[14]See here, here, and here. Reinstating them should be embraced by anyone of any ideological or political persuasion who genuinely has the Court’s best interests at heart.

This reform is straightforward and could readily be achieved without legislation or constitutional amendment. All it needs is for our elected leaders to muster the courage and integrity to put the public interest over knee-jerk politics. Unfortunately, that may be too great an ask in these polarized, hyper-partisan times.