How to Fix the Supreme Court

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At the Supreme Court, the stakes are getting higher and higher. Any day, the Court could rule on Louisiana v. Callais, which could effectively demolish what’s left of the Voting Rights Act and add chaos into our elections. It will also rule on President Trump’s birthright citizenship executive order, which could upend what it means to be an American. Several decisions coming down the pike will determine whether the rule of law will persist amid brazen, illegal acts by this administration. 

Meanwhile, a chorus of voices has emerged questioning the Court’s credibility. This week, Fox News analyst Juan Williams, who calls himself a “good friend” of Justice Clarence Thomas, cited allegations of corruption and wrote of the Court: “A reckoning is overdue.” Graham Platner, a candidate for the U.S. Senate in Maine, publicly called for the impeachment of two justices. 

The Supreme Court is a branch of government. Nothing more, nothing less. We want it to do what we need it to do: to stand up, with independence, for the rule of law. But we cannot rely on the Court to do that. Its power depends on its credibility — credibility it must earn. 

An NBC News poll recently showed that public confidence in the Court is at an all-time low. It’s a dangerous combination for a branch that relies on public confidence for its relevance and authority. At a time when democracy has never been more tested, we need a strong, trusted Court to uphold the rule of law and defend our institutions. 

The good news is that there are solutions that could greatly bolster trust. 

At the Brennan Center, we know that times of crisis can bring opportunities for reform. It’s why we have not only sought to identify and analyze institutional problems, but offer innovative, thoughtful solutions to strengthen our democracy. 

Today, we published the next installment in our Solutions series: “Six Solutions for the Supreme Court” by my colleagues Miriam Rosenbaum and Emily Whitehead. It’s a robust policy agenda that Congress can and should enact to improve the functioning of the Court and boost confidence.       

It’s entirely appropriate to do this. The Supreme Court is a public institution. To be effective, it must maintain public trust. 

The agenda we publish today includes term limits for justices — a reform widely popular across the political spectrum. (The most recent Fox News poll shows that 78 percent support term limits.) We suggest 18-year term limits, after which justices would assume senior status, through which they can continue to carry out their constitutionally guaranteed tenures with modified duties. Term limits should be accompanied by a system of regular appointments, so each president can name two justices per presidential term. Giving each president equal influence over the Court’s makeup would greatly enhance the democratic link between the Court and the public — a critical way to ensure the justices stay in touch with the views of the American people. 

We also urge a binding ethics code. The Supreme Court is the only court in the country without an enforceable ethics code, leaving justices relatively immune from serious accountability. In recent years, this has led to scandals involving luxurious gifts and vacations, reports of justices engaging in political fundraisers and activities, and scenarios where justices fail to recuse themselves despite conflicts of interest. We are calling on Congress to pass a new ethics code, with a ban on stock trading, heightened gift restrictions, a clear mechanism of enforcement, and public reporting of findings, ensuring transparency and reducing the impression of a corrupt Court.   

And the agenda includes reforms to the Court’s emergency docket (dubbed the “shadow docket”), which has been shown to be prone to abuse. The Court’s emergency docket has historically allowed it to quickly block lower court rulings to stop immediate harm. Yet recently, it has been used less to respond to emergencies and more to greenlight the Trump administration’s policies with unexplained, unsigned opinions. Of the 25 times the Court has answered Trump’s call to intervene to reverse lower court rulings, it has ruled in Trump’s favor 80 percent of the time, sometimes overturning decades of precedent. Congress can and should curb shadow docket abuse by requiring justices to issue written and signed opinions in shadow docket cases and codifying restrictions so the Court can only take up a case when there is a true emergency. 

Other reforms include creating a mechanism to fast-track congressional responses to misguided rulings and improving the confirmation process. 

And we call on the Court to further open its proceedings to the public and allow video in the courtroom. Already, audio tapes of the Court are available, with no diminution in its gravitas. Video would make its workings available to the widest audience. 

We have yet to see how the rest of this term will play out. But these reforms are not about responding to any particular ruling. Rather, this agenda would be a strong first step in rebuilding confidence in the Court and ensuring it has the long-term credibility and institutional integrity to play the role we need it to play in our democracy.