Deep Dive: What Congress Can Do to Reform the Court

Chief Justice John Roberts, because he is less extreme than the other five in our current 6–3 SCOTUS, has been labeled a "moderate" by many elite journalists and pundits. But throughout his judicial career he has acted to limit voting rights in ways that served the interests of the billionaire financiers of the Republican Party. Soon after Democrats, independents, and some Republicans came together to elect President Obama in 2008, the Roberts Court—at the time a 5–4 conservative majority—issued radical rulings, including Citizens United in 2010, which opened the doors to unlimited, undisclosed campaign spending now known as "dark money," and Shelby v. Holder in 2013, which gutted important parts of the Voting Rights Act. After President Biden was elected, the Roberts Court further weakened the Voting Rights Act in Brnovich v. DNC.

Last summer, the Supreme Court’s Dobbs decision overturning the constitutional right to abortion awakened the public to the alarming possibility of the Roberts Court, with the addition of three MAGA justices, ripping away even more hard-won freedoms and weakening regulations that protect the interests of the people from the ruthless rules of corporate profit. ProPublica has prepared an interactive guide to examine which liberal precedents particular justices seem interested in undermining: Supreme Risk: An Interactive Guide to Rights the Supreme Court Could Take Away.

How we got here

For far too long, Democratic Party leaders have treated our Supreme Court as beyond reproach. This is probably in deference to the memories of how the long struggles for basic human and civil rights were affirmed and codified into federal law by SCOTUS, during the decades in which it had a liberal majority from the 1950s through the 1970s. Throughout the twentieth century, those liberal precedents were largely upheld by our federal judges and SCOTUS, so Democratic leaders kept their distance, citing also the separation of powers.

Right-wing Republican billionaires were not concerned with the separation of powers, much less our freedoms. They realized that what the Court giveth, the Court can take away. They bristled at the Supreme Court having recognized civil rights, voting rights, and environmental justice for all Americans, and they built a system to claw those freedoms and protections back. Republicans understood that while most rights are secured by statutes and regulations passed by elected state legislatures and Congress, others are guarantees extrapolated by the Court from the language of the Constitution. So they poured billions into capturing SCOTUS and corrupting the members they installed on it, to achieve through the Court what they couldn’t get through the elected branches of government.

Since President Obama’s victory in 2008, the Roberts Court has eroded the Voting Rights Act, campaign finance laws, and the right to unionize. Last year, the Court issued the Dobbs decision, overturning reproductive rights we had had since the Roe v. Wade decision of 1973. This year it has attacked the EPA’s Clean Water Act and is poised to further undermine the Voting Rights Act and take aim at affirmative action.

With all that has happened in the past year, a broader swath of the public now understands why we need the SCOTUS ethics reforms included in the For the People Act that was blocked by the Senate in the last Congress and why we need to expand the Court.

Expand The Court

Congress has the power to expand SCOTUS and has done so before. The current consensus among those advocating court expansion is to add four justices to SCOTUS, because the current size of nine justices was established on the basis of there being nine federal judicial circuits, whereas now there are thirteen such circuits. President Biden could use the vacancies to diversify the Court, and the larger Court could take on more cases.

The main argument against this proposal is that it could start a tit-for-tat spiraling in which Republicans then add even more seats. That would be on them. Not doing it just allows one-sided Republican dominance to remain in place. That’s on us. As former Stanford Law Dean Larry Kramer wrote about expansion: “This is a lesson we learned decades ago from economists and game theorists: Once cooperation breaks down, the only play to restore it is tit-for-tat. It’s the only way both sides can learn that neither side wins unless they cooperate.”

For further information, see To Save Democracy, We Must Expand the Court by Christopher Kang, president of Demand Justice (democracydocket.com).

Term Limits

Current Supreme Court justices serve longer than at any other time in our history (twenty-eight years on average) and are gaming their retirements to occur during ideologically aligned presidencies. Life tenure has turned their nominations into a political circus. But lifetime appointment is not specified in the Constitution and is therefore subject to laws enacted by Congress.

Term limits would make SCOTUS nominations predictable exercises rather than the partisan spectacles they are today. Fix The Court has suggested 18-year terms, based on the current size of the Court: 9 justices × 2 years = 18 years. This would relieve the Court of justices who have served on it for three decades and give President Biden an opportunity to replace long-serving right-wing justices with younger, more diverse, more liberal justices.

For further information, see Term Limits , Fix the Court.

Ethics Reforms

Senator Sheldon Whitehouse, current chair of the Senate’s Subcommittee on Federal Courts, Oversight, Agency Action, & Federal Rights, has been making a series of passionate floor speeches called “The Scheme” about how right-wing donors have tried to capture the U.S. Supreme Court and achieve through the Court what they cannot through the elected branches of government. He has also been a leading opponent of judge-shopping—the practice whereby activist plaintiffs will try to get their case before a judge ideologically predisposed to give them the ruling they’re after—and in 2019 introduced the AMICUS Act, which would require influential amici to disclose funders and would restrict gifts to judges in order to reduce lobbying in our judiciary. This year Senator Whitehouse and his colleagues have introduced the SCERT Act for the same purposes.

This April the ProPublica exposé led to public coverage of numerous luxurious gifts and vacations that had been lavished upon our Justices. (Hence our Call to Action, Tell our Members of Congress: Pass legislation to curb Supreme Court corruption.)

Recommendations for SCOTUS ethics reform also suggest that Justices be prohibited from owning individual stocks and certain other financial investments to avoid conflicts of interest. This ethics reform has also been recommended for Members of Congress.

Supreme Court Justices are also expected to recuse themselves from cases in which they have political or ideological conflicts of interest, but there are some glaring recent examples in which this has not been done. Most notably, Justice Thomas was the lone dissenting opinion on a ruling against Trump’s attempt to block the release of White House records. When his wife Ginni was discovered to have exchanged text messages with Mark Meadows in support of the insurrection, Democrats called for his resignation.

For further information, see Recent Times in Which a Justice Failed to Recuse Despite a Conflict of Interests, Fix the Court and Clarence Thomas Again Moves To Block Jan. 6 Inquiry That Could Implicate His Wife, Yahoo News, 11/14/2022

Congress has the power; it is their job

Article III of the Constitution, which establishes the judicial branch of government, gives Congress significant discretion to determine the funding, structure, and function of the federal judiciary. MAGA Republican billionaires have ravaged SCOTUS and turned it into a destructive machine to crush our freedom, limit our civil rights, and eliminate protections from corporate greed. It is long past time for Democrats in Congress to use their full Constitutional power to reform SCOTUS, rather than leaving it open to Republican corruption. SCOTUS reform should be a major issue in federal and state campaigns in 2024.