Saving the Supreme Court From Itself

At present America finds itself with an out of control Supreme Court that is controled by an extreme majority that is out of step with mainstream America, contemptuous of voting rights and democracy, and raring to impose its religious views on all citizens, erasing long held rights in the process.  Indeed, justices like Samuel Alito to share a mindset akin to that of the Spanish Inquisition or the ayatollah's in Tehran than what would expect to find in a senor jurists on the highest court of the land.   Confidence in and perceived legitimacy of the has plummeted.  Ethical issues swirl around Justice Thomas - and Alito.  Yet the etreme majority seems both oblivious to and contemptuous toward truly justified criticism of the Court if not outright condemnation of the Court's seeming desire to disenfranchise  certain voters who do not embrace their right wing agenda while granting special rights to far right "Christians."  The situation has fanned discussions of how to reform the Court before it self-destructs.   A column in the Washington Post looks at possible reforms.  Here are column excerpts: 

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.”

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.

“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. . . . . 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). . . . 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.

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.

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.

“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.”

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.

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.