Enough Already: It’s Time to Reform the Supreme Court
Ethics outrages and partisan hardball are not what the Founders had in mind.
HOW MANY LAST STRAWS can there be? When it comes to the Supreme Court, the supply appears to be infinite.
The Court needs an extreme makeover ASAP, and that is far from an extreme idea. It’s the only path back to a high court that is trustworthy, balanced, logical, and durable.
The latest shock is the photo of an upside-down American flag—a symbol adopted by Donald Trump supporters, including the “Stop the Steal” movement to keep him in office after he lost—on display outside Supreme Court Justice Samuel Alito’s house in January 2021, just days after an insurrectionist mob waving some upside-down flags attacked the U.S. Capitol.
And no matter how or how soon the justices rule on Trump’s argument that he deserves absolute immunity from criminal prosecution, apparently on the theory that presidents should be free to do whatever, including try to overturn elections they’ve lost, the oral argument in that case last month was so disturbing—with justices and Trump’s lawyers entertaining hypotheticals about a president ordering the murder of a political rival—that it can never be unheard. Not even if Trump loses the 2024 election, not even if he’s convicted in any or all of his criminal trials.
The only answer is to fix the damn Court, as Michigan Gov. Gretchen Whitmer likes to say about roads. After eight years of escalating ethics outrages and take-no-prisoner tactics, most of them perpetrated by hell-for-leather conservatives, steps that once seemed over the top or unnecessarily melodramatic now increasingly seem like common sense to many Americans.
Finally.
In one sign of urgency building on Capitol Hill, five House Democrats and several advocacy groups last week announced a Court Reform Now Task Force to highlight the Court’s problems and new laws that could ease them. “Not everyone in Congress knows that this is a five-alarm fire situation,” said Rep. Hank Johnson of Georgia, senior Democrat on the House Judiciary subcommittee that oversees courts. The next day, the New York Times published its report about the “Stop the Steal” flag on Alito’s lawn.
The major options for Court reform have been clear for years. Now, with Supreme Court job approval hovering at or near record lows, several are under discussion on both sides of the Capitol:
Ethics. The Supreme Court Ethics, Recusal, and Transparency Act to require a binding code of ethics and transparency measures for justices. This is a popular bipartisan idea, with support levels of 90 percent in one poll, 75 percent in another, 67 percent in a third.
Given all that’s come out in congressional and media investigations, from Justice Clarence Thomas’s wife Ginni participating in “Stop the Steal” efforts to Thomas himself accepting decades of luxury travel, private school tuition, and other gifts from wealthy conservatives with interests before the Court, the broad support for an ethics code is not surprising. As Rep. Jamie Raskin said at the task force press conference, “Right now America’s got the best Supreme Court that money can buy, which is a pretty awful Supreme Court. We need the best Supreme Court that money can’t buy.”
Term limits. The Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act setting eighteen-year terms for justices, allowing each president to nominate two. Polls show about two-thirds of Americans support this.
The widespread support for term limits is also unsurprising after one political hardball spectacle after another, starting with the Senate GOP blockade of President Barack Obama’s nomination of Merrick Garland. Republicans left the seat vacant for over a year for the fake reason that the March 2016 nomination was too close to the November 2016 election. We know it was fake because, beyond the bedrock absurdity, Republicans rushed through a nomination in less than a month at the end of 2020—also a presidential election year.Court expansion. The Judiciary Act to expand the Supreme Court from nine to thirteen members. Congress has changed the size of the Court seven times in the past. Still, the public is more wary about this, with one poll showing 44 percent in support of adding justices compared with 35 percent opposed.
Until recently I was skeptical about both term limits and Court expansion. I didn’t sense the political will for either one, and I wasn’t sure either was warranted. But since the immunity hearing, and after many rulings detached from precedent, practicality, or public opinion, I’ve had zero doubt about the need for term limits and I’m even warming up to the prospect of a thirteen-justice Court.
The point of all of this is not to pack the Court and send it screeching left, but to rebalance and stabilize an institution that has grown smug, immodest, inured to ethics abuses, and cavalier to constitutional and national concerns and freedoms—starting with whether a president who tried to stay in power despite losing an election should be tried for that before voters pass judgment on his third presidential campaign.
The links between democracy, the Court and what the Brennan Center calls “changing public values” have been fraying for years. Two-term presidents George W. Bush and Barack Obama each named two justices over their eight years, while Trump named three in his four years, the center notes, and called that “impossible to square with principles of democratic legitimacy.” Term limits, by contrast, would give each president “an equal imprint” on the Court and “enhance the democratic link between the Court and the public.”
Conservatives have, of course, been largely pleased with this Court’s rulings. But the political, legal, and human consequences, especially from losing the constitutional right to legal abortion, are just beginning. It is not difficult to envision term limits producing a more moderate Court, to the benefit of a less ideological, less theocratic, less MAGA GOP of the future.
The most likely bipartisan project right now is the most modest: a binding code of ethics, with requirements similar to those for members of Congress. But I would also suggest to center-right Republicans, independents, and even traditional conservatives, that term limits are worth their consideration as well. President Joe Biden’s bipartisan commission on the Court noted in its final report that term limits “enjoy considerable, bipartisan support.”
Like the Republican party and democracy itself, the Court is not working as it once did. The “mischiefs of faction” the Founders so feared have overridden the necessary niceties of good character, civic virtue, and the rule of law. Beyond that, the reformist tradition that has allowed America to learn, grow, adapt, and change over the centuries is dormant.
And the longer it stays that way, the more it looks like the psychological syndrome of learned helplessness—summarized by Medical News Today as “a state that occurs after a person has experienced a stressful situation repeatedly. They believe that they are unable to control or change the situation, so they do not try, even when opportunities for change are available.”
In American politics right now, those suffering from “learned helplessness” are the many Republicans who know Trump is a cancer on their party and nation but did not vote to impeach, convict, or bar him from office after the 2020 election; and the many Democrats who have failed to seize potential “opportunities for change” in the past few years.
Are we okay with political hypocrisy, hyperpolarization, power grabs, threats, violence, and corruption? Do we really want to let our reformist tradition die?
I don’t think so.
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