The changing politics of Supreme Court reform

Over the past 18 months, the six-justice conservative majority on the U.S. Supreme Court has reshaped wide swaths of American life, overturning the 50-year-old Roe v. Wade ruling that guaranteed a right to abortion, banning colleges from considering race and ethnicity in admissions, allowing some businesses to refuse service to same-sex couples, and throwing out President Joe Biden’s $400 billion student debt relief plan.

“This is not a normal court,” Biden said in June, after the Supreme Court ended affirmative action.

Now, calls from progressives and elected Democrats to reform the court have reached new heights, driven by a combination of ethics scandals on the court and public outrage at recent rulings. Democrats have put forward three main proposals for court reform: creating a binding code of ethics, imposing term limits on justices, and adding additional justices to the court.

The current version of the Roberts Court, some say, is profoundly right-wing. Harvard professor Michael J. Klarman, a legal historian and constitutional scholar, called the court “the most conservative Court, relative to where the country is at politically, since the 1930s and possibly ever in American history.

“Democrats have won the popular vote in 7 of the last 8 presidential elections; no political party in US history had previously done this — ever. So this is pretty clearly a nation that is slightly left of center,” he added in an email to the American Independent Foundation. “The Republican Justices do not feel bound by precedent. Several of them don’t seem to care about popular opinion either.”

United for Democracy, a coalition of progressive advocacy groups and labor unions launched in June that aims to build public pressure on Congress to pass court reform legislation, is a product of the growing support for court reform. The group has spent at least $1 million running ads outlining the court’s recent decisions and calling for legislative action.

The coalition’s executive director, Stasha Rhodes, declined to support any specific policy but said that “it is not unlikely that eventually we endorse particular reforms.”

“It’s dangerous to think that this court can be brought back from the brink without structural reform,” she added. “As the full devastation of this most recent term reiterated, that’s wishful thinking at best.”

Polling shared with the American Independent Foundation by Marquette University Law School finds that between 70% and 80% of Americans say they would support an ethics code and term limits for justices. Expanding the court is significantly less popular, commanding just under 50% approval in recent polling.

But former Wisconsin Sen. Russ Feingold, the president of the American Constitution Society, says that rising support among progressives for court expansion is an important trend. The American Constitution Society is a progressive legal group that endorses all three major ethics proposals put forward by Democrats.

“A couple of years ago, we were the first organization to come out publicly for these types of reforms. And it was considered pretty edgy,” he told the American Independent Foundation. “There is real momentum on the Democratic side and the progressive side and maybe even some moderates on the other side.”

“This is a very fast development,” he added.

One proposal moving through the Senate is legislation that would force Chief Justice John Roberts to impose a code of conduct on justices. Under the Supreme Court Ethics, Recusal, and Transparency Act of 2023, introduced by Sen. Dick Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI), a randomly selected panel of federal judges would investigate alleged violations of the code, although the panel would have no disciplinary power over the court.

The bill follows reporting from ProPublica that unearthed a decadeslong financial relationship and friendship between Justice Clarence Thomas and Harlan Crow, a billionaire who is a major funder of Republican causes and candidates.

The bill would also require justices to recuse themselves from cases involving parties who had lobbied in support of their appointment to the court.

In July, the Senate Judiciary Committee recommended that the bill be brought to the Senate floor by an 11-10 party-line vote.

Jennifer Ahearn, senior counsel for the Judiciary Program at the Brennan Center for Justice, told the American Independent Foundation that the influential nonpartisan law institute supports congressional action to impose an ethics code, but that it’s just a start.

“From our perspective, if all that happened is a code of conduct was imposed, we think that would be insufficient in and of itself,” Ahern said. “I think it is necessary, I think it’s important, but it is not sufficient by any means to address all of the problems with the court.”

A more substantive solution that the Brennan Center endorses, term limits for justices, also has support from some in Congress. Rep. Ro Khanna (D-CA) and Rep. Don Beyer (D-VA) introduced a bill in June that would limit justices to an 18-year term on the court. The bill has the support of eight Democrats in both houses of Congress, including the three leading Democrats running to replace Sen. Dianne Feinstein in California, Reps. Adam Schiff, Barbara Lee, and Katie Porter.

Under the proposal, the president would appoint a new justice every two years, keeping the number of active justices at nine. After the end of a justice’s term, they would become a “senior justice” and continue to serve the court in a variety of administrative and advisory roles, including stepping in to fill vacancies on the court created by health issues or recusals.

Of the three reforms, expansion of the court has the least amount of support and would have the most immediate impact on the court’s balance of power.

The process is simple: Congress would pass a law revising the number of justices on the court. The proposal put forward by Democrats adds four justices, enough to give the court’s liberal wing a 7-6 majority. Congress hasn’t changed the number of justices since 1869, over 150 years ago.

Still, a number of prominent left-leaning law experts, including several members of Biden’s Presidential Commission on the Supreme Court of the United States, argue that expanding the court is both necessary and justifiable. Kermit Roosevelt III, a law professor at the University of Pennsylvania and a former member of Biden’s Supreme Court commission, didn’t support court expansion at first.

He told the American Independent Foundation that he changed his mind after considering the danger the court posed to democracy: “If you have a president who loses the popular vote and then appoints justices that are confirmed by senators representing a minority of the population, now you’ve got a minority in control of all three branches of the federal government.”

“Then maybe the Supreme Court starts issuing decisions that lock that minority in and make it impossible for the majority to get back control. And that was what really turned the corner for me,” he added. “If the only way to stop it is expansion, then you expand the court, in my view.”

Since changing his mind, Roosevelt has publicly spoken about court expansion in a variety of forums, including the Just Majority bus tour. The nationwide tour aimed to build public support for adding justices to the court and was sponsored in part by Demand Justice, a progressive 501(c)(4) legal advocacy group that supports progressive nominees for federal courts.

“We cannot leave the same people in charge and expect to get the change we need,” Brian Fallon, the group’s executive director, told the American Independent Foundation in a statement. “Only expansion will immediately change the composition of the court in a way that would protect our rights and our democracy.”

Congress’ nascent efforts already have some opponents on the court. Chief Justice Roberts has hinted that congressional checks on the court’s power through ethics reform might create separation of powers conflicts, a position made explicit by Justice Samuel Alito in a recent Wall Street Journal interview. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period,” Alito said.

Regardless, court reforms are unlikely to become law in the near future because the GOP controls the House of Representatives and Senate procedures require legislation to pass a procedural vote with support from 60 senators. It’s also unclear whether Biden would support changing the rules the court operates under. The president has been largely unresponsive to calls for ethics reform, according to the Wall Street Journal, and outright rejected expansion of the court in an interview with MSNBC.

Feingold, however, was optimistic about reform.

“People have changed their attitude and realized you can’t just sit back the next 25 years and allow the Supreme Court to destroy our rights and the balance of our system. So this is a seismic shift,” Feingold said. “The fact that he said, ‘This is not a normal court’ is not a minor thing. It’s not the kind of thing Joe Biden ever would have said in the years when I served with him on [the] Senate Judiciary Committee.”

Published with permission of The American Independent Foundation.