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Analysis

Is Court Reform Possible?

With the Supreme Court’s extremist behavior, the need for substantive reform is imperative if we are to have a judiciary that reflects a functioning democracy.

Last Updated: June 2, 2022
Published: June 7, 2022

This piece was origin­ally published in Dame Magazine.

A series of demo­cratic fail­ures has empowered the Supreme Court to usher in a new era of profound inequal­ity. On diverse issues ranging from campaign finance to the rights of crim­inal defend­ants, a major­ity of the Court has regu­larly short­changed preced­ent and embraced legal inter­pret­a­tions that priv­ilege a white and wealthy minor­ity at the expense of every­one else. But power is bestowed by the people; when govern­ment actors abuse it, they can lose it. The Supreme Court is ferment­ing threats to its own power and legit­im­acy by adher­ing to a far-right conser­vat­ive agenda at the expense of the coun­try and the Consti­tu­tion. The Court’s plan to gut abor­tion rights is the latest example of its ever-increas­ing radic­al­ism, and may turbocharge the public’s demands for change.

Justice Samuel Alito’s draft opin­ion in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion is an aston­ish­ing attack on the rights of preg­nant people and the very legal system meant to protect those rights. The draft opin­ion is, to be clear, a draft. Never­the­less, the Supreme Court is plainly prepar­ing to form­ally releg­ate half of the popu­la­tion to second-class citizen­ship with rights and liber­ties condi­tioned on their repro­duct­ive status. It is cruelly ironic that Alito’s draft suggests people who disagree with his decision can simply vote about it, while ignor­ing ongo­ing compre­hens­ive attacks on polit­ical parti­cip­a­tion includ­ing voter suppres­sion and extreme partisan gerry­man­der­ing – much of which the Supreme Court itself has green­lit. Troub­lingly, the burdens of voting restric­tions, like the burdens of abor­tion restric­tions, fall hard­est on communit­ies of color. The Supreme Court has there­fore made it so the people most harmed are least able to avail them­selves of stand­ard demo­cratic tools to ameli­or­ate harm. This is simply not how a demo­cracy should func­tion. By under­scor­ing the broken polit­ics and processes surround­ing the Supreme Court, Dobbs may add fuel to the fire of calls for a demo­crat­ized Court that works for all of us.

The Dobbs draft opin­ion—and the far-right lean­ings of the Court that produced it—is only possible because of a decades’ long and wildly success­ful plan to fill the federal judi­ciary with conser­vat­ive ideo­logues, with the Supreme Court bench as the ulti­mate goal. Begin­ning in the 1970s, corpor­ate interests wary of 1960s socio-polit­ical move­ments developed and funded compre­hens­ive infra­struc­ture to advance a far-right agenda, focus­ing on the judi­ciary as an instru­ment for social, economic, and polit­ical change. A crucial compon­ent of the plan to push back against left-lean­ing legal successes was the organ­iz­a­tion and mobil­iz­a­tion of conser­vat­ive lawyers and judges who could ensure that corpor­ate Amer­ica’s preferred socioeco­nomic and polit­ical order was upheld in the courts. It is in this ecosys­tem that the Feder­al­ist Soci­ety emerged and built an empire around shep­herd­ing future lead­ers of the conser­vat­ive legal move­ment into judge­ships. All six justices appoin­ted by Repub­lican pres­id­ents are current or former Feder­al­ist Soci­ety members.

The success of the conser­vat­ive pipeline to the Supreme Court has also been depend­ent on strident consti­tu­tional hard­ball during the Senate’s judi­cial confirm­a­tion hear­ings that has politi­cized the process to the break­ing point. The most glar­ing example is the stone­walled Supreme Court nomin­a­tion of then-Judge Merrick Garland—­fol­lowed by the fast-tracked confirm­a­tion of Justice Amy Coney Barrett. Garland did not even receive a hear­ing after Senate repub­lic­ans inven­ted an “elec­tion year rule” and effect­ively changed the number of seats on the Court for over a year—the longest Supreme Court vacancy since Congress settled on a nine-justice Court.

But as soon as it was polit­ic­ally advant­age­ous to do so, Senate Repub­lic­ans aban­doned their made-up rule. Repub­lic­ans who feigned concern that Garland’s appoint­ment was too close to an elec­tion had no reser­va­tions about Barrett’s appoint­ment during an elec­tion. It didn’t matter that 2020 was also an elec­tion year or that millions of Amer­ic­ans had already voted by mail. All that mattered was that Barrett is a reli­able arch-conser­vat­ive, so the Repub­lican-controlled Congress began Barrett’s hear­ings a mere 13 days after her nomin­a­tion—the fast­est period since 1975. This allowed the far right to clinch an extrem­ist 6–3 super­ma­jor­ity on the Supreme Court. Trump’s Feder­al­ist Soci­ety-approved nomin­ees to the coun­try’s thir­teen federal appeals courts (which provide the final word on the vast major­ity of federal cases) were also confirmed at break­neck speed: Trump appoin­ted nearly as many appel­late judges in four years as Obama appoin­ted in eight.

The increas­ing polar­iz­a­tion of judi­cial confirm­a­tions has magni­fied the impact of other dysfunc­tions in our demo­cratic system. Three sitting Justices—Bar­rett, Kavanaugh, and Gorsuch—were appoin­ted during the term of a pres­id­ent who lost the popu­lar vote. And the conser­vat­ive bloc prepared to over­turn Roe—Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett—were each confirmed by senat­ors who repres­ent a smal­ler share of the coun­try than the senat­ors who voted against them. Senate hear­ings have also not played a product­ive role in allow­ing for mean­ing­ful vetting of judi­cial nomin­ees. Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett all gave assur­ances during their confirm­a­tion hear­ings that Roe and Casey are import­ant consti­tu­tional preced­ents that have been repeatedly reaf­firmed, thereby strength­en­ing the cases’ value, and that they have no agenda to over­turn the cases protect­ing this funda­mental right – assur­ances that are now demon­strably worth­less. And the Senate failed to call several witnesses prepared to testify under oath and corrob­or­ate alleg­a­tions of sexual miscon­duct by Justices Thomas and Kavanaugh during their respect­ive confirm­a­tion hear­ings. Comment­at­ors have observed that two men cred­ibly accused of viol­at­ing women’s bodily autonomy are now poised to issue a Supreme Court decision that will viol­ate the bodily autonomy of millions.

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.

Abor­tion rights are over­whelm­ingly popu­lar. Pew Research Center data indic­ates that 61% of Amer­ic­ans think abor­tion should be legal in all or most circum­stances, and only 8% of U.S. adults think abor­tion should always be illegal. Politico data simil­arly shows that a clear major­ity of the coun­try would disap­prove of the Court over­turn­ing Roe v. Wade. Opin­ions on the Supreme Court are a closer call, with only 54% of U.S. adults saying they have a favor­able opin­ion of the Court while 44% have an unfa­vor­able view. Strik­ingly, only 17 percent of adults say the justices are doing a good job keep­ing their own polit­ical views out of their decisions. That’s danger­ously low for an insti­tu­tion that derives its power from the public’s confid­ence that its decisions are based on what the law requires and not polit­ical agen­das.

And Dobbs is just the begin­ning. As a clear pattern of radical rulings emerge across cases and issue areas, trust in the Court is likely to fall further. This unsus­tain­able situ­ation has led polit­ical scient­ists to predict decreased approval of the Court and increased calls for reform meas­ures such as Court expan­sion, term limits, and limits to the Court’s juris­dic­tion or its discre­tion over the cases it gets to hear. Some schol­ars have also recom­men­ded reforms to constrain the Supreme Court’s abil­ity to inval­id­ate certain types of legis­la­tion, or regu­lar­ize Supreme Court appoint­ments and judi­cial turnover. Proponents argue that such reforms would push back against extreme conser­vat­ive court-capture by foster­ing a judi­ciary that’s more repres­ent­at­ive of demo­cratic pref­er­ences and better reflects the diversity of the public that courts are supposed to serve.

Struc­tural changes like these would require congres­sional action, and some could require a consti­tu­tional amend­ment. Large-scale reforms to the Court were incon­ceiv­able as recently as a few years ago. But court reform move­ments have a long history at the state and federal level – and have often seemed impossible until changes in the polit­ical envir­on­ment made them all but inev­it­able.

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–and how narrowly they view guar­an­tees of equal­ity and social and economic rights. Federal lawmakers have made some propos­als to begin to reori­ent the wayward Court. Congres­sional legis­la­tion has been intro­duced that would increase the number of Supreme Court justices from nine to thir­teen. Another bill would estab­lish term limits of 18 years for Supreme Court justices. There is also pending legis­la­tion to estab­lish protec­tions for federal judi­ciary employ­ees from discrim­in­a­tion and whis­tleblower retali­ation, and consequences for judi­cial miscon­duct. And several bills would strengthen ethical require­ments, such as by facil­it­at­ing the creation of a new code of conduct for the Court or urging justices to form­ally subject them­selves to the code that exists for other judges, prescrib­ing what circum­stances warrant recusal, and more.

A demo­crat­ized judi­ciary is possible, and it’s not what we have now. The present processes by which people ascend to the Court, stay on the Court, and wield power once on the Court are deeply and trans­par­ently flawed. And the Dobbs draft provides a stark example of how the Court is increas­ingly both a product and a source of anti­demo­cracy in the United States. There is no single solu­tion to repair our broken demo­cracy, and many ideas warrant further invest­ig­a­tion. Given the Court’s extrem­ist beha­vior, the pres­sure for such invest­ig­a­tion and substant­ive reform may come sooner rather than later­—as it should.