Reform the Supreme Court? What Do You Think?

"Everything should be on the table."

It’s been almost five years since we learned that the Supreme Court’s conservative supermajority is willing to go completely off the rails to support Republican authoritarianism. In 2021, the Court issued a decision allowing a Texas prohibition on abortion after six weeks of pregnancy to stand. As you likely recall, Roe was still the law of the land, but Texas’s Senate Bill 8, passed by an extreme Republican legislature, effectively banned abortion in the state, and, stunningly, empowered private citizens to sue anyone who aided, abetted, or otherwise facilitated an abortion after six weeks.

The Justices handed down the decision via the Court’s so-called “shadow docket,” an emergency order issued without the opportunity for arguments in court. Legal experts called the situation “a constitutional crisis.”

At the time, Rhiannon Hamam wrote for the legal outlet Balls and Strikes: “Unless and until Senate Democrats get serious about reforming both the Trump-packed Supreme Court and also the Trump-packed lower courts, SB8 is just a preview of the many dangerous, fascistic attacks on constitutional rights to come.” In retrospect, yes, that was true.

Since overturning Roe, the Supreme Court has thrown out other major precedents to dismantle many other rights and protections. Among other dangerous decisions, the Court’s supermajority has limited the Environmental Protection Agency’s ability to regulate greenhouse gases, gutted the Voting Rights Act, and ruled that President Trump has absolutely immunity from criminal prosecution. In several decisions, including those related to gerrymandering, the justices have enabled the Republican Party – which, no coincidence, installed the super-majority of conservative justices – to consolidate and retain structural political power.

Given that the judiciary is increasingly just a gear in the Republican political machine, calling for Supreme Court reform is no longer considered fringe. Especially since the Court’s devastating decision in Callais, which will radically diminish Black Americans’ voting rights and collective power, more Democrats have issued full-throated calls for changing the system. “We need Supreme Court reform,” Senator Raphael Warnock (D-GA) recently said. “Everything should be on the table.”

So, what are some options on the table? Here are a few reform ideas under consideration:

Increase the number of Justices. Congress could change the number of Supreme Court justices without changing the Constitution. Many reform advocates propose expanding the number of justices on the Supreme Court to dilute the influence of the current conservative supermajority that has shown almost unwavering loyalty to President Trump and the rightwing thinktanks and billionaires that enabled their lifetime tenures.

Proponents of expanding the Court argue that unless more justices are added soon, there is effectively no check on MAGA donors and politicians who have seized levers of power across the government and are pushing openly authoritarian ideas and policies at an alarming rate. The thinking is simple: Our country is in a desperate situation, so we need major, immediate changes to correct the system to preserve our basic rights, including the rights to vote, protest, and speak freely.

One argument against expanding the Supreme Court is that such reforms would make the High Court an openly partisan body – and that’s not what it’s supposed to be. The problem, of course, is that the Supreme Court is already deeply corrupted by partisan forces and huge amounts of political spending (including the tens of millions Leonard Leo’s network spent to remake the federal judiciary) and pretending that’s not true won’t change reality.

Some argue that this reform isn’t a long-term solution on its own, because if Congress adds more justices when Democrats are in power, Republicans will just do the same when they have their chance. So, expanding the Supreme Court would also need to be accompanied by other reforms.

Enact Term Limits. Congress could enact term limits for justices. Term limits would reduce the vast power that just nine individuals hold over the roughly 342 million people who live in the United States. Many reform advocates propose 18-year terms.

Lifetime appointments are a major reason that the Court is so imbalanced and authoritarianism friendly. At the risk of stating the obvious, under the current system of lifetime Supreme Court appointments, our constitutional rights rely on the health of a few individuals and the mostly random chance of whether they will pass away while a Democrat or Republican is president – if they don’t voluntarily retire.

“No other major democracy in the world provides life tenure for high court judges who hear constitutional cases,” Miriam Rosenbaum and Emily Whitehead of the Brennan Center for Justice write in a recently published paper on fixing the Supreme Court. “Nobody should hold that much power for so long. This reflects a core element of democratic accountability, a lesson taught by George Washington when he established the two-term tradition for presidents.”

Critics of this idea say that changes to the structure could diminish the Court’s credibility. But what credibility? A majority of Americans are skeptical of the Court, and with good reason.

The only argument against Court term limits that makes sense to me is that creating a system wherein Justices will likely take other jobs after leaving the Supreme Court could make them even more corruptible. Like many members of Congress, justices could hand out favorable outcomes to say a financial institution or pharmaceutical company, hoping to receive a cushy job in exchange. The possibility of a revolving door between the courts and industry – or think tanks, etc. – just provides more reason to pass meaningful ethics reform alongside any structural changes to the Court.

Establish Ethics Reforms. Justice Clarence Thomas – the longest-serving current Supreme Court justice – has received millions of dollars-worth of gifts from political donors, according to incredible reporting from ProPublica. One of Thomas’s main benefactors, Harlon Crow, is also a major donor to Republican causes. If you need a refresher, I recommend reading the whole report, which on its own makes a strong case for the urgent need for Supreme Court ethics reform.

Despite having lifetime appointments and extraordinary power to shape every facet of American life, Supreme Court Justices are held to very few ethics requirements. They aren’t even held to the same ethics requirements as federal judges. The Supreme Court only adopted its first ethics requirement in 2023, and that is only a series of stated rules and principles, and none of them are enforceable. There’s no mechanism to enforce the rules if a Justice is accused of breaking them. “This code is more loophole than law,” write The Brennan Center’s Rosenbaum and Whitehead.

There are lots of ways ethics reform could happen. Congress could force Supreme Court Justices to be accountable to the public by being more transparent, including by requiring more financial disclosure and television cameras in the courtroom. Congress could also reform its own role by requiring a Supreme Court vacancy to be filled within a specified span of time, eliminating the possibility of a repeat of Senate Majority Leader Mitch McConnell blocking the confirmation of Merrick Garland. And justices could have tighter requirements dictating when they need to recuse themselves from cases.

So, what do you think? Expand the court, enact term limits, pass ethics reform, or all three?