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The Supreme Court is badly, dangerously broken.
You may have heard this elsewhere, but as someone who has followed and written about the institution for more than a dozen years at The New York Times, I say it with genuine reluctance. I know how essential the Court is to the stability and functioning of American government. At the same time, based on the increasingly radical and imperious behavior of the current justices over the past several years, it is impossible for me to come to any other conclusion.
The list of the Roberts Court’s offenses is long and growing: unexplained and indecipherable decisions on the so-called shadow docket; the flouting of the most basic ethical standards; the invention of new doctrines (like the one that gives this newsletter its name) in order to overturn, almost always on partisan lines, acts of Congress or the Court’s own precedents that had survived for generations; and a string of destructive, destabilizing rulings that cannot be squared with any reasonable reading of constitutional text and history.
Perhaps the most telling data point comes not from the Court itself; it comes from the American people forced to live under its rule. Public support for the Court, as measured in multiple polls, is at or near an all-time low. Barely one in five Americans today has a great deal of confidence in the Court, down from more than half in 2000, according to an NBC News poll. On the flip side, almost 40 percent feel very little or no confidence, triple the percentage who felt that way a quarter-century ago.
This is a rolling crisis with no clear end in sight. The Court’s nine justices enjoy immense power, getting the final word on many of the most contested legal and political questions in a nation of more than 340 million people. And yet for all that power, the Court runs a remarkably fragile operation. Because it “has no influence over either the sword or the purse,” Alexander Hamilton wrote in Federalist No. 78, it “may truly be said to have neither FORCE nor WILL, but merely judgment.”
In other words, the Supreme Court’s legitimacy and authority depend entirely on maintaining the approval of the American people. Through most of the country’s history, it managed to do that, even during times of intense political discord. That is no longer true. The people are judging the Court’s judgment, as they should, and they don’t like what they’re seeing. This poses a grave threat to the Court’s ability to serve the country, and in the longer run it endangers the entire democratic project.
There are plenty of explanations, some obvious and some less so, for why the Court has lost the trust of such a wide swath of the people. Working through these explanations, and discussing what can be done to rebuild that trust and to reestablish the Court’s proper role in American government and society, is the reason I’m starting Major Questions.
Every two weeks, sometimes more often as the news demands, I will be here writing about the Court and its rulings, both interim and final; the cases it accepts and rejects; the words of the justices on and off the bench; and the patterns that you should discern in all of it.
Most of all, I will write about what we can do to fix this broken Court, how we can transform it into an institution that upholds the foundational principles of the Declaration of Independence (“all men are created equal”) and the Constitution (“We the People”). That means protecting democracy over oligarchy and ensuring that the American people can govern themselves freely, fairly, and fully.
To my mind, the reform debate is the most important one to be having in this moment, about this Court: not a dissection of its specific rulings but an honest conversation about what the Court has become, how to restore its legitimacy and shore it up as a central pillar of American governance. The crisis at One First Street demands immediate and comprehensive action, and you can come to Major Questions to join the conversation, to read and to think about how to take that action.
To be clear: This is a fundamentally political project, and that’s as it should be. The Supreme Court has existed at the intersection of law and politics from the beginning. Its members like to protest, from Justice Felix Frankfurter warning against entering the “political thicket” to Chief Justice John Roberts insisting that there are not “Democratic” or “Republican” justices, but they protest too much: The justices are human beings like the rest of us, and they do not occupy some magical politics-free zone, even if we expect them to make an effort.
Still, even allowing for an inescapably political Supreme Court, what’s happening today is different not only in degree but in kind. I would identify two breaking points in the last quarter-century that forever altered the relationship between the Court and the American people.
The first: Bush v. Gore, when a Republican-appointed majority short-circuited the 2000 presidential vote count and handed the White House to the Republican nominee. Years later, Justice Antonin Scalia mocked those who were still upset at the 5–4 ruling — “Get over it,” he said — but I proudly count myself among those who have ignored the justice’s command. The ruling in that case changed millions of Americans’ conception of the Court and inflicted damage on the institution that has never been repaired. It was not so much the specific outcome (although, as a longtime Electoral College critic, I thought that was pretty bad, too) as what Bush v. Gore said about the Court’s willingness to take such a monumental decision away from the American people.
The second breaking point we’ll call Garland v. McConnell — the Republican Senate’s refusal in 2016 to even hold a hearing for President Obama’s nominee, Merrick Garland, on the grounds that an election nine months off was too close. The sheer chutzpah of that ploy, which created a shorthanded Court for more than a year solely to fill the vacancy with the right-wing Neil Gorsuch, injected a new kind of toxicity into the national bloodstream. It stripped away any remaining sense that the Court might be able to distance itself from partisan politics. When Sen. Mitch McConnell and his Senate colleagues did an about-face four years later, ramming through another right-wing justice only days before the 2020 election, the takeaway for most Americans was not that politics exists at the Court, but that the Court is nothing but politics. It also seemed to embolden several of the right-wing justices, who have increasingly let their political predilections overtake their judicial modesty.
No wonder that most Americans today do not trust the Court. The justices don’t even appear to trust each other, as Clarence Thomas lamented in the aftermath of the leak of the 2022 ruling that would overturn Roe v. Wade. This is the legacy of the extreme politicization inflicted both on and by the Supreme Court in the 21st century.
It’s also why I was finding it increasingly difficult at The Times to write about the Court’s rulings as though everything was normal. After all, it seemed we knew how most of the cases would come out the moment the Court agreed to hear them. To me, it was pointless to analyze those rulings separate from addressing fundamental questions about the Court’s legitimacy.
As I write these words in March 2026, the situation remains untenable: Every week we wait with a mix of anticipation and dread (mostly dread) to see if the Court will stand up to the lawless presidency it has helped create. Now and then it does, as with the tariffs ruling last month, say, or the refusal to countenance certain other uses of emergency powers. But we have plenty of reason to fear that in the coming months the Court will remind us, sharply and repeatedly, where it really stands, whether on the series of cases likely to expand presidential power over independent agencies or the widely expected (and possibly final) stake in the heart of the Voting Rights Act. Whatever the Court decides on these cases, I will be analyzing them in light of patterns that are evident to anyone who has watched the Roberts Court over the years. For example, even when the Court says no to a presidential power grab, it does so in a political context and a legal world created by decades of its own ideological capture and strategic aggression.
It’s not an easy thing to take on an institution that is both critical to the country’s survival and an ever-increasing threat to it. That’s why I am so excited to be starting Major Questions now with the Brennan Center, which has been leading the way on court reform for years, and within its newly formed Kohlberg Center on the U.S. Supreme Court. Striking a balance between respect and reproach will be my primary task in writing Major Questions. What I can say for sure is that any successful effort must begin with the acknowledgment that the truest way to show respect for the institution is to demand its reform.
In the coming weeks and months, I’ll look closely at the most popular and plausible proposals on the table. For instance, 18-year term limits for justices, with regularized appointments for every president. As the Brennan Center has reported, Supreme Court justices now serve a decade longer on average than they did in the 1960s and can sit on the bench for as many as nine presidential terms. Globally, the United States is alone in granting life tenure to high court judges who hear constitutional cases.
Another clearly overdue reform is an enforceable ethics code for the justices, who are alone among federal judges in being bound by no ethical rules other than those they choose for themselves. I’ll also consider other potential reforms, both those that can be imposed on the Court from without and those that might come from within.
I hope you will read along and that you’ll send me tips and ideas for future newsletters if you think I’m missing something or not writing enough about something else. I also welcome critiques of my arguments and analyses, because this is all a work in progress. The bottom line is that if you’re here, I assume you care deeply about the Court, as I do. You want it to play its rightful role in protecting American democracy and letting the people govern themselves. If that describes you, welcome to the conversation — and the fight.
