I have written several articles law enforcement. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on Law Enforcement.
The first question we can ask is, does the president have control over the Supreme Court?
The President is not mandated to carry out the orders of the Supreme Court. The Supreme Court does not have any enforcement power; the enforcement power lies solely with the executive branch. Thus, the executive branch can place a check on the Supreme Court through refusal to execute the orders of the court.
The second question: What is the President’s role with Supreme Court justices?
In relation to the Supreme Court (the judicial branch) one of these instituted “checks” is that the executive branch, the President, appoints the Supreme Court Justices, who are in turn confirmed, or rejected, by the Senate (the legislative branch).
The Third question: Can the president change the number of Supreme Court Justices?
The president, however, does not make the final decision. The number of justices on the Supreme Court is not set by the Constitution, but it is determined by Congress. And when a party controls the presidency and Congress, the chances for altering the number of justices increases.
Now that we have answered some basic questions about how the Executive Branch and the Judicial Branch interact with each other, lets discuss some issues we currently have.
That means the three justices who owe their seats on the nation’s highest bench to Trump, as well as others nominated by Republican presidents, profess adherence to the Constitution and the precise text of federal statutes. They don’t just make stuff up.
So when Texas, backed by Trump and a cadre of Republican state attorneys general and members of Congress, asked the court to block election results from Georgia, Michigan, Pennsylvania and Wisconsin, it stood no chance of prevailing.
“The hallmark of conservative jurisprudence is respect for established law,” said Michael McConnell, director of the constitutional law center at Stanford Law School and a former federal appeals court judge appointed by President George W. Bush. “No one should be surprised that the justices, like the Trump-appointed lower court judges in all these election cases, followed the law.”
The law took them invariably in one direction, for a number of reasons:
• Texas lacked legal standing because it “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections,” the court said in its brief order Friday.
• The state sought to leapfrog lower courts by framing the case as one in which the Supreme Court has “original jurisdiction.”
• Principles of federalism dictate that states decide for themselves how to run their elections.
• Governors already had certified the votes, making the challenge tardy, if not moot.
• Millions of voters could have been disenfranchised if their legally cast ballots were discounted.
“Texas is asking the Supreme Court to take up a case in which it would have to find its own facts, in which it isn’t remotely obvious why Texas is the right plaintiff, and in which time is of the essence,” said Stephen Vladeck, an expert on federal courts at the University of Texas School of Law. “The posture in which the factual and legal arguments were presented necessarily made it impossible for those arguments to be taken seriously, even by the justices who might otherwise have been inclined to do so.”
Associate Justices Clarence Thomas and Samuel Alito, for instance, have urged the court to exercise more often its authority to hear disputes between states without requiring them to start in lower courts. But the Supreme Court still has discretion to deny outlandish requests.
Thomas and Alito said Friday they would have granted Texas’ request to make its case, but “would not grant other relief.”Get the Coronavirus Watch newsletter in your inbox.
“They may be conservative on legal and social issues, but they recognize that Texas’ claim was political theater, not a valid legal action, and that it would be impossible for the Supreme Court to serve as a trial court to evaluate allegations of election fraud in multiple states,” said John Bellinger, who served during Bush’s administration as legal adviser at the State Department. “To have taken the case would have delayed the transition and caused a constitutional crisis.”
What sets the justices and other federal judges apart from elected officials is their life tenure, which insulates them from political pressure. While scores of GOP officials saw political benefit in siding with Trump, judges and justices had no similar reasons.
“Politicians … will sometimes take truly awful positions on legal issues for political reasons. Judges have a different structure of incentives,” said Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School. “They don’t have the same need to cater to a political base or to the whims of Donald Trump. And they have stronger incentives to care about the precedent they are establishing.”
Thus it was that when Trump’s lawyers urged the Supreme Court this year to block Congress and New York prosecutors from gaining access to the president’s financial records, Associate Justices Neil Gorsuch and Brett Kavanaugh, Trump’s first two nominees, agreed that the president is not immune from criminal investigation.
Trump’s third nominee, Associate Justice Amy Coney Barrett, assured the Senate Judiciary Committee in October that she would not be beholden to Trump if called upon to weigh in on the election.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people,” Barrett said.
Similarly, Associate Justices Ruth Bader Ginsburg and Stephen Breyer joined the court’s unanimous 1997 ruling that President Bill Clinton could not sidestep a sexual harassment lawsuit brought by former Arkansas state employee Paula Jones.
“To be sure, justices may often have views on legal subjects that lead them to understand the law one way or another,” said Eugene Volokh, a libertarian professor at UCLA School of Law. “But they try hard to honestly apply their understanding of the law, without regard to which political figures will benefit from a decision.”
Jonathan Adler, a professor at Case Western Reserve School of Law, put it succinctly:
“Law matters,” he said. “Judges are not politicians in robes.”
Biden assembling commission to study Supreme Court ‘reform’: report
The Biden administration is assembling a bipartisan commission to consider expanding the US Supreme Court — an idea that Senate Majority Leader Chuck Schumer this week called “the big one.”
The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer, who will co-chair the commission. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have already been selected, according to multiple people familiar with the discussions.
Several leading lawyers and former Justice Department officials have been recruited for the panel, which is expected to have between nine and 15 members, Politico said Wednesday, citing sources familiar with the plan.
Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who will join Bauer as co-chair. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said.
Fredrickson has hinted that she is intellectually supportive of ideas like court expansion. In 2019, she said in an interview with Eric Lesh, the executive director of the LGBT Bar Association and Foundation of Greater New York: “I often point out to people who aren’t lawyers that the Supreme Court is not defined as ‘nine person body’ in the Constitution, and it has changed size many times.”
Rodríguez’s opinions on court reforms are less clear. Goldsmith’s selection, meanwhile, is likely to be the one to frustrate progressives. A senior fellow at the Hoover Institution, Goldsmith did not support Trump and is a friend and co-author of Bauer. But he was a vocal advocate of Brett Kavanaugh’s appointment to the high court — an appointment that sparked Democratic advocacy for expanding the number of Supreme Court seats.
“He will also be an influential figure within the Supreme Court building,” Goldsmith wrote in 2018 about Kavanaugh in a Time article titled, “Brett Kavanaugh Will Right the Course of the Supreme Court.” “He is a brilliant analyst with a deep scholarly and practical knowledge of the law. His legal opinions are unusually accessible. He is a magnanimous soul.”
Bauer, who is not planning to go into the administration full-time, is himself a proponent of term limits for federal judges. He has been helping with the creation of the commission and, according to a person familiar with the deliberations, initially proposed the idea of forming a commission to study the issue of court reform.
On Monday night, Schumer (D-NY) told MSNBC’s “The Rachel Maddow Show” that Democrats were planning to increase the number of federal lower-court judges to offset the 200-plus who were successfully nominated by former President Donald Trump.
Schumer also called the notion of expanding the nine-member Supreme Court “the big one,” but declined to say if he favored doing it.
Instead, Schumer said he would wait for a recommendation from the commission, which Biden last year pledged to create, with a mandate to issue a report within 180 days.
At the time, Biden said the Supreme Court was “getting out of whack” but also said he was “not a fan of court packing.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden told CBS’ “60 Minutes” in October.
“Presidents come and go. Supreme Court justices stay for generations.”
The formation of Biden’s commission has progressive groups that favor expanding the court skeptical that they’ll get their wish, Politico said.
“Commissions are often places where ideas go to die and there is no time on the clock to reform the court,” Aaron Belkin of Take Back the Court told the website.
Another prospective appointee, Harvard Law School professor and former US assistant attorney general Jack Goldsmith, will also likely frustrate progressives due to his outspoken support for Brett Kavanaugh’s appointment to the Supreme Court, Politico said.
Kavanaugh is among three justices nominated by former President Donald Trump, whose picks increased the conservative majority on the high court to 6-3.
In addition to the Supreme Court, Biden’s commission will also consider reforms to lower-level federal courts, including the judiciary, an administration official told Politico.
The Biden administration neither confirmed nor denied Politico’s reporting.
“The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks,” a White House official told the website.
he recruitment of members is still ongoing, but a source familiar with the discussion expects between nine and 15 members total to be appointed to the commission. Rodríguez and Goldsmith did not respond to a request for comment, and Fredrickson declined to comment.
The idea for a commission came together amid the push by Republican senators to confirm Amy Coney Barrett to the Supreme Court in the weeks before the November election. Under intense pressure to consider reforms to the Supreme Court’s composition — including court expansion — Biden performed a classic Washington, D.C., punt. He announced in October that if he was elected, he would form such a commission to study structural changes. But Biden also conceded he is “not a fan of court packing.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden said in a “60 Minutes” interview in October. “Presidents come and go. Supreme Court justices stay for generations.”
Progressive groups pushing for court expansion responded with skepticism to Biden’s announcement at the time. And they’ve remained skeptical to this day.
“Commissions are often places where ideas go to die and there is no time on the clock to reform the court,” said Aaron Belkin, the director of Take Back the Court, a progressive group advocating for adding seats to the Supreme Court. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts.”
“We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”
An administration official said the commission is part of a broader court review and reform effort, part of which will focus on lower courts.
Progressives’ push to expand the Supreme Court was reenergized after Democrats won both Georgia Senate runoff races in January, giving them control of the White House and Congress for the first time since 2010.
But any major structural reform would still be a heavy lift, as several Democratic senators have signaled their opposition to such measures. Senate Majority Leader Chuck Schumer said Monday he was waiting for Biden’s commission to decide a path forward on reforms to the Supreme Court.
“President Biden has put together this commission to come up with a report in 180 days,” he said in an MSNBC interview this week. “We’re going to see what the commission says and go from there.”
Should we restructure the Supreme Court?
The death of Justice Ruth Bader Ginsburg and President Trump’s determination to put a successor in place quickly has focused new attention on the Supreme Court. In recent presidential campaigns, Republicans more than Democrats have made selecting federal judges, especially Supreme Court justices, a top issue. Some Democrats are talking about enlarging the court if the Senate confirms a Trump nominee and Democrats take control of the White House and both legislative chambers. Earlier in the campaign, some Democratic candidates proposed changes to the size of the Supreme Court and the tenure of its members.
Congress hasn’t changed the court’s size—nine justices—since the mid-19th century. The justices, like about half the roughly 2,000 federal judges, have tenure during what the Constitution calls “good Behaviour”—essentially for as long as they want to serve, subject only to rare legislative impeachments and removals. Unsettled is whether Congress could limit justices’ tenure on the Supreme Court as long as it preserves their tenure as judges by reassigning them to other federal courts.
- It typically takes a crisis to generate support for major change to the federal courts, but some Democrats have vowed to push the issue if Trump fills RBG’s seat after Republicans blocked Obama’s nominee in 2016.
- The Constitution specifies no size for the Supreme Court. Congress settled on nine in the late 1860s to match the number of judicial circuits.
- Supreme Court justices have been serving longer terms, with a median term length of about 26 years since 1981.
A Closer Look
A review of competing proposals
Interest groups and candidates offer both partisan and non-partisan proposals.
Adding Seats as Payback:
In the partisan approach, Democrats—once they are in control of the White House and Congress—would enact a statute adding two seats to the court, whose Democratic appointees would counter the most recent Republican appointees. Former Attorney General Eric Holder raised the prospect in March 2019, as did progressive groups such as Take Back the Court and Demand Justice .
Advocates are frank about their motives. Republicans, they say, stole a court seat from the Democrats in 2016 when they refused to consider Merrick Garland, Obama’s nominee to replace the late Antonin Scalia, and then in 2017 filled the vacancy with Neil Gorsuch on a party-line vote. Add-seat advocates also point to Brett Kavanaugh’s controversial confirmation amid claims that neither the Justice Department nor the Senate fully investigated charges of misbehavior from his high school days and beyond.
More broadly, critics note that presidents who came to office despite losing the popular vote (Trump, decidedly) appointed four of today’s five conservative justices – and Senate confirmation of RBG’s successor would make it one more. And while senators historically have confirmed justices by margins large enough to represent a majority of voters even given the Senate’s constitutional malapportionment, the senators who confirmed Justices Clarence Thomas, Gorsuch, and Kavanaugh represented less than half the population. A court so constituted would arguably face a legitimacy crisis were it to start overturning legislation enacted by a popularly elected Democratic president and Congress. (I offered that analysis here, while rejecting current calls to increase the court’s membership.)
A Supreme Court of 15 justices
Other proposals have at least a veneer of nonpartisanship. They reflect an attitude of “do something” about the court short of a partisan restructuring. Former South Bend Mayor Pete Buttigieg, a contender for the Democratic nomination in 2020, proposed a Supreme Court of 15 justices. Borrowing from a draft law review article, he suggests 10 justices divided equally between those “affiliated with” one or the other of two major parties; those 10 would select five more. That arrangement, he claimed in the October Democratic debate, would “depoliticize the court,” adding that “We can’t go on like this, where every single time there is a vacancy, we have this apocalyptic ideological firefight over what to do next.” (The same draft law review article also proposed a rotating nine-member court drawn by lot from the 170 or so court of appeals judges, but this proposal has received little attention.)
Time limits on justices
More common nonpartisan proposals would impose term limits on justices. A bipartisan group of judges and law professors began to push this idea in 2009, and long-time and highly regarded political analyst Norman Ornstein has promoted it at least since 2014 and renews the call regularly.
Proponents suggest an 18-year term followed by, if the justice wishes, service on a lower court to honor the constitutional promise of good-behavior tenure. Fully implemented, that arrangement would produce a Supreme Court vacancy every two years (barring unanticipated openings). That, say advocates, would lower the temperature of confirmation battles. Both sides would realize that the nominee would not be on the Court for the quarter century or more that has become the norm. What’s more, regular turnover would deter the search for young, less-experienced nominees who might serve two or more decades, and it would bring new blood more often to an institution that was created when average life spans were much shorter than now.
Is there any appetite for changing the Supreme Court?
It typically takes a crisis to generate support for major change to the federal courts. Until now there has been little evidence today of public appetite for such change, but the rush to fill RBG’s seat late in the election year appears to have whetted the appetite. The size of the Supreme Court came up, albeit obliquely, in the 2019 Democratic debates, in particular during the 12-candidate October debate, and the commentariat occasionally raises the matter. Several Democratic senators in a Supreme Court brief pointed to a May 2019 Quinnipiac University national survey that they claimed showed “a majority now believes the ‘Supreme Court should be restructured in order to reduce the influence of politics.’” But the survey question gave no definition of “restructured” and supporters registered just a bare majority. A Marquette University Law School national survey in October 2019 also included a long bank of questions about the court. Most relevant, it found that nearly three-fifths opposed “increase[ing] the number of justices,” and that even among committed Democrats (as opposed to “Lean Democratic”), support was evenly split. By contrast, nearly three-quarters favored term limits regardless of party.
As the presidential campaign kicks into higher gear—and with the court now hearing arguments and eventually issuing decisions on polarizing issues such as transgender rights in employment and the fate of non-citizens brought to the country as children—proposals to enlarge the court or trim its members’ tenure might gain traction and move the campaign beyond Republican boasts about filling vacancies and Democratic pledges to appoint Roe-sympathetic justices.
Would enlarging the Supreme Court produce quid pro quos?
Adding seats to the court could precipitate a game of tit-for-tat. Upon gaining control, one party would expand the court, and after the next election, the other party would slim it back down to size or enlarge it even more. Such “rinse and repeat” politics would be costly for the court, creating if nothing else, full employment for the court’s carpentry shop as it reconfigured the courtroom’s bench every few years.
Is anything sacrosanct about a nine-seat Supreme Court?
The Constitution specifies no size for the Supreme Court, which has varied from five to 10 justices, depending on the number of judicial circuits. A major job of Supreme Court justices until the late nineteenth century was to travel about their assigned circuits, trying cases in the old circuit courts, the system’s major trial court until 1891. Congress settled on nine circuits in the late 1860s and thus nine justices.
Despite this nine-by-happenstance, some speak of a nine-member court as a Goldilocks ideal—not too big, not too small. In opposing Franklin Roosevelt’s 1937 plan to add justices to the court, Chief Justice Charles Evans Hughes warned about “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned.”
Of the 54 state and territorial high courts, 29 have seven members. Only 10 have nine, and none has more than nine. Judgeships on the 13 federal courts of appeals range from six to 29 with a median size of 13, but those courts do almost all their work in randomly selected three-judge panels. Having three-justice panels decide cases for the entire Supreme Court would be unworkable because losing litigants would inevitably appeal a panel decision to the entire court, prompting satellite disputes about whether to rehear the case—and would probably violate Article III’s mandate for “one Supreme Court.” The United Kingdom’s 12-member Supreme Court works mainly in panels. The Canadian Supreme Court and Australian High Court have nine and seven judgeships, respectively.
Is the proposal to add seats to the Supreme Court and to have some justices appoint others constitutional? Is it practical?
Congress clearly has the constitutional authority to change the size of the Supreme Court. And a statute prescribing some form of political party affiliation would withstand constitutional scrutiny. Section 251(a) of Title 28 provides that no more than five of the nine U.S. International Trade Court judges may “be from the same political party.” The website of the Trade Court, though, makes no mention of its party requirement, a reflection perhaps of a general distaste for the idea.
Less debatable is whether the Constitution would countenance some justices appointing other justices, given Article II’s mandate that the president, with Senate approval, appoint “Judges of the supreme Court.” It leaves Congress the discretion to “vest the Appointment of such inferior Officers, as they think proper,” in the president, the courts, or executive branch officials.
The 5-5-5-member Court plan would likely strike most legislators—two professors’ heavily footnoted pleas not withstanding—as Rube Goldberg judicial-machinery tinkering that would undermine lines of accountability for the justices selected by the other justices.
What would term limits accomplish?
Justices have been serving longer terms. This table groups justices appointed since Congress settled on a nine-member Supreme Court.
Term limits and regularly recurring vacancies might tone down the epic Supreme Court confirmation battles that have occurred roughly twice every eight years. But they might instead make knock-down, drag-outs a recurring part of the political landscape. An election preceding the end of a swing justice’s 18-year term could thrust the court into election year battles more intense than we’ve already seen.
And what about unanticipated effects? Would, for example, justices whose terms are about to end be more willing to hear a case on which normally they might defer action to let the issue percolate in the courts of appeals?
The bigger question
That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.
Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.
Blame rising partisan polarization for the broken process. But Republicans should bear extra responsibility for their unprecedented stonewalling of President Obama’s judicial nominees after Republicans took control of the Senate in 2015. GOP senators took hostage Justice Scalia’s vacated seat and have used verbal contortions to justify confirming a nominee for any 2020 vacancy that might occur. That Senate in 2015-16 also confirmed far fewer appellate and trial court judges than did Senate majorities during divided government in previous administrations’ final two years. That obstructionism set up the Trump administration’s confirmation blitz—especially at the Supreme Court and court of appeals levels—seating 53 very conservative appellate judges for which the 2016 popular vote arguably provided no mandate.
Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st-century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.
A December 24 presidential tweet boasted “187 new Federal Judges have been confirmed under the Trump Administration, including two great new United States Supreme Court Justices. We are shattering every record!” That boast has some truth but, to put it charitably, a lot of exaggeration. Compared to recent previous administrations at this same early-fourth-year point […]
As it reconvenes after its summer recess, Congress faces the prospect of a partial government shutdown by month’s end. Federal courts are already partially shutdown. Of 852 federal district and circuit judgeships, 87 were vacant on September 6. Thirty-eight of the 49 pending nominees have been waiting longer than has Judge Merrick Garland, who was […]
In 1996, to head off calls to impeach a life-tenured federal judge for ill-considered remarks about police officers, Chief Justice William Rehnquist cautioned that “judicial independence does not mean that the country will be forever in sway to groups of non-elected judges.” He recalled Franklin Roosevelt’s failed 1937 proposal to pack the Supreme Court by […]
Structural Reforms to the Federal Judiciary
Restoring Independence and Fairness to the Courts
Introduction and summary
Discussions of the federal judiciary often focus on the substance of decisions made—which side wins and which side loses—and rightly so. These individual opinions are frequently of incredible importance, not just to the parties involved but in shaping the law more broadly. Yet this focus on substantive decisions has obscured deeper structural factors at play in the nation’s federal judiciary. Structural problems—such as lack of judicial diversity, ideologue judges, and lack of judicial accountability—undercut the courts’ legitimacy and have tangible negative effects on judicial decision-making. Instead of protecting everyday Americans by serving as a check on abuses of power, too often the federal courts have become a tool for carrying out the agendas of special interests and corporations.
Structural problems with the judiciary have always existed to varying degrees. But they have been exacerbated in recent years due to an ongoing campaign by conservatives to take control of the federal courts, often through procedural changes that have significant effects but garner little public attention. The problem has now reached a crisis point. Conservatives have shown a willingness to abandon any and all norms to undermine the judicial nominations process and pack the courts with judges who will help them realize political goals they cannot achieve through the political process. These judges have proven more than willing to carry out the task, supporting the most specious of legal claims in order to skew the system in favor of conservative interests and even prevent many Americans from accessing the courts at all.
Progressives need to consider policies to combat the ideological bias of the courts. This report outlines the current problems in the federal judiciary and then discusses two types of structural reform: changing the composition and authority of the courts and changing the rules that dictate who has access to them.
Discussions about changing the composition and authority of the courts have garnered greater attention recently as a result of conservative efforts to pack the courts. Some proposals have been debated for a considerable amount of time, such as term limits for judges and justices. Others are newer additions that have arisen as the legal community grapples with the reality of conservative norm-breaking, such as altering the structure of the Supreme Court.
At this point, the most important step is to move past the question of whether to consider significant reforms and begin discussing their relative merits. To that end, this report does not seek to identify a specific preferred policy solution. Instead, it discusses the strengths and weaknesses of a number of proposals, including changing the structure of the Supreme Court by adding justices or creating a rotating panel of justices; reducing the influence of ideologue judges through proposals such as term limits; and changes to improve judicial accountability.
The report next addresses how to eliminate judicial and legislative roadblocks that curtail access to justice for society’s most vulnerable and rig the system in favor of the wealthy and powerful. Here, the policy discussions have already been ongoing for a number of years. The report outlines specific steps policymakers can take to restore plaintiffs’ ability to bring class action suits, limit forced arbitration, restrict the abuse of secret settlements and record sealing; expand the ability of private entities to bring suits to enforce federal law; and restore simpler pleading standards.
The structural reform proposals detailed in this report are not exhaustive; but they would take substantial steps to address some of the serious problems in the judiciary. As important as the reforms themselves, policymakers must recognize the urgent need for bold structural changes to the judiciary.
The need for structural reform in the federal judicial system
There is growing recognition of the need to reform the U.S. judicial system, including the Supreme Court. Scholars, judges, and even some 2020 presidential candidates have suggested everything from expanding the number of judges who sit on the federal bench to imposing term limits on judges. The serious consideration being given to these judicial reform proposals reflects deep concerns about the institution and a recognition that reform is needed.
In part, these issues are the result of long-standing problems in the judiciary, which has historically favored the interests of the rich and powerful over society’s most vulnerable. For example, in the 1800s, the Supreme Court benefited white landowners and businesspeople by ruling that African Americans were not American citizens and by upholding “separate but equal” racial segregation and discrimination. Between 1905 and 1918, the Supreme Court struck down important labor laws, including those establishing humane work hours and banning child labor. Later, it upheld a Virginia law permitting the sterilization of people with disabilities, the criminalization of same-sex relationships, the internment of Japanese Americans, and severe penal punishments targeting people of color. More recently, the Supreme Court sided with powerful corporations by prohibiting workers and consumers from bringing class action lawsuits and by allowing the wealthy to drown out the voices of everyday Americans through corporate dark money contributions.
To be sure, there have been brief periods during which the Supreme Court has robustly protected the American people—including those who are most vulnerable—notably under the leadership of former Chief Justice Earl Warren. Looking at the entirety of American history, however, the court has more frequently served to check social progress rather than advance it.
Unreflective judges lead to out-of-touch judgments
The courts’ favoritism toward wealthy, often white, Americans and its hostility toward the interests of underrepresented groups is, at least in part, a product of the judiciary’s very makeup. The federal bench has long been dominated by white male elites. The first African American was not appointed to the Supreme Court until 1967, and the first woman was not appointed until 1981. While diversity on the lower federal courts has improved substantially, the Supreme Court remains a particularly unrepresentative institution; it currently has only two people of color—22 percent—and three women, 33 percent. Moreover, justices on the highest court are significantly older than the general populace, with most between the ages of 64 and 86 years old. Compared with the rest of the United States, the Supreme Court is exceptionally non-diverse.
There is of course a difference between descriptive and substantive representation. Descriptive representation is when an institution physically resembles the population it has authority over, while substantive representation involves acting in a constituency’s substantive interests. Certainly, some Supreme Court justices and federal judges have been fierce advocates for the rights of people of color, women, and the LGBTQ community even though they did not personally identify with those groups.
That said, having individuals in power who look like or share characteristics with the broader U.S. population furthers the perceived legitimacy of the courts and their decisions. As recognized by Daniel Goldberg, the legal director at the Alliance for Justice: “In an increasingly diverse country, citizens have a right to walk into a courtroom and see judges who are deciding life-and-death issues that look like them.”
Moreover, ethnic and gender diversity on the bench has been shown to positively impact decision-making. As described by Judge Harry Edwards of the U.S. Court of Appeals for the District of Columbia Circuit, it is “inevitable that judges’ different professional and life experiences have some bearing on how they confront various problems that come before them.”
Studies show that female judges on federal appellate courts are more likely to rule in favor of plaintiffs in sexual harassment and discrimination cases than male judges. Similarly, black judges are more likely to rule in favor of affirmative action programs than their nonblack counterparts. The mere presence of female and black judges on federal appellate courts can positively impact decisions made by other judges in certain cases. One study found that having at least one female judge on an appellate court panel more than doubles the likelihood that male judges will find for plaintiffs in sexual harassment cases. And in sex discrimination cases, the presence of a female judge triples the likelihood that male judges will find for plaintiffs. Regarding racial diversity, a study found that the presence of a black judge on an appellate panel increases the likelihood that a nonblack judge will rule in favor of an affirmative action program by roughly 20 percent. Another study found that the presence of at least one African American judge on an appellate panel increases the likelihood that white judges will find for plaintiffs in cases involving violations of Section 2 of the Voting Right Act.
Racial, ethnic, and gender diversity have improved on the lower courts in recent years, particularly under the Obama administration, but that trend is retrograding. Of the active federal judges appointed so far under the Trump administration, more than 80 percent are white, while more than 70 percent are men.
Adding to the Supreme Court’s representation issue, eight of its nine justices graduated from either Harvard or Yale Law School. Justice Ruth Bader Ginsburg began her legal studies at Harvard before graduating from the equally prestigious Columbia University. Moreover, most of the justices are millionaires who followed almost identical paths to their current post, such as clerking at the Supreme Court and working at prestigious law firms or within administrations before being appointed to a lower federal court. The median net worth of Supreme Court justices in 2017 was estimated at roughly $1.9 million, compared with $97,300 for all U.S. families.
The judiciary’s elitism fosters a culture of favoritism that determines who has access to the courts. A 2014 Reuters investigation found that from 2004 to 2012, a group of 66 elite attorneys were six times more likely to have their cases heard by the Supreme Court than all other attorneys who filed cases before the court. Of those 66 lawyers, 63 were white and only eight were women. Many of these attorneys worked on behalf of corporate interests and had personal or professional connections to the justices. According to the Reuters report, this show of favoritism fosters “a decided advantage for corporate America, and a growing insularity at the court.”
The increasingly partisan nature of U.S. courts
Lack of diversity is only part of the explanation for bias in the judiciary. Partisan manipulation has also played a definitive role in creating an institution designed to protect the economic interests of the rich and powerful over everyone else. Reforms to fix the broken judicial system are often rebuked as attempts to politicize the courts. Yet conservatives have been working for decades to turn the federal judiciary into a partisan tool to achieve conservative ends. Their efforts, while largely successful in accomplishing their goals, have severely undermined the proper role of the courts.
The influence of conservative interest groups on the federal judiciary
Two of the most influential conservative groups that have attempted to change the composition of the courts have been the Heritage Foundation and the Federalist Society. These groups exercised significant influence during the Reagan administration, which relied heavily on both organizations to recommend judges for the federal bench and shape legal policy. The two groups have continued playing substantial roles in appointing conservative judges in subsequent administrations, including that of President Donald Trump. Today, all five conservative Supreme Court justices have ties to the Federalist Society. By January 2019, more than 80 percent of Trump’s appellate circuit court appointees had current or prior membership in the Federalist Society.
The Federalist Society and the Heritage Foundation are not the only conservative interest groups with outsize influence over the federal courts. The U.S. Chamber of Commerce—whose board is comprised mainly of corporate leaders—is hugely powerful as well. Cases in which the chamber or its litigation arm, the U.S. Chamber Litigation Center (USCLC), is involved have a high likelihood of being accepted by the Supreme Court and a 70 percent chance of receiving a favorable ruling since Chief Justice John Roberts took the bench in 2005. There is a very cozy relationship between the USCLC and the conservative legal establishment; for example, a lawyer who helped Roberts through his confirmation hearings during the Bush administration went on to become one of the USCLC’s top litigators.
While conservatives have long made the appointment of judges who share their rigid ideology a primary political goal, their efforts to control the judiciary have accelerated in recent times. The most striking example has been a robust conservative court packing scheme that has played out in the Senate since 2014.
First, under the leadership of conservative Sen. Mitch McConnell (R-KY), the Senate majority stole judicial seats by delaying and denying confirmation of judges nominated by then-President Barack Obama. The most egregious example came in 2016 with the refusal to even consider the nomination of Judge Merrick Garland for the Supreme Court. Just 10 days after Justice Antonin Scalia’s death in February 2016—before President Obama had even named Garland as a possible replacement—McConnell and his fellow Senate Republicans declared that they would not consider any nominee made by the Obama White House. The Garland incident was only the tip of the iceberg, however: Over the course of Obama’s final two years in office, lawmakers confirmed fewer judges than at any other time of divided government in the past half-century.
Next, the Senate majority used a whole host of tricks to quickly fill judicial seats with extreme ideologues once President Trump took office in January 2017. The Senate rejected its own procedures and precedent by abandoning what is termed the “blue slip” process that gave home-state senators a say in judicial nominations and by allowing Supreme Court justices to be appointed along strict partisan lines. Under McConnell’s leadership, Senate Republicans even went so far as to hold confirmation hearings during Senate recesses.
As illustrated by Figure 2, the strategy worked. While Obama saw his appointment power virtually nullified by McConnell and his Senate allies, Trump has been able to ram through a slew of controversial judges. Of the more than 110 federal seats left open by conservative lawmakers while Obama was in office, more than 80 percent have already been filled by Trump during his first two years in office. Trump has confirmed more circuit judges than any other administration in recent memory.
In making an end run around the normal judicial confirmation process, conservative lawmakers have overlooked nominees’ questionable writings and statements on women, race, and LGBTQ rights, as well as lack of legal experience. Although grassroots campaigns have succeeded in keeping some of the most controversial nominees off the federal bench, a number of unqualified judges have been pushed through. And these Trump appointees, according to USA Today reporter Richard Wolf, already “are having an impact on issues ranging from civil rights and campaign spending to public prayer and the death penalty.”
Conservatives’ efforts to shape the courts have been hugely effective for them. Since Chief Justice Roberts was appointed in 2005, 92 percent of the Supreme Court’s conservative bloc’s 5-4 decisions have benefited conservative and corporate interests.44 These cases restricted voting rights, empowered the corporate takeover of federal elections, and weakened protections for unions and workers.
In addition to substantive rulings that benefit conservative special interests, federal judges and conservative policymakers have created procedural rules that actively prevent certain groups from gaining access to courts in the first place, such as limiting plaintiffs’ ability to bring class action lawsuits and expanding the reach of forced arbitration. These decisions have had tangible effects on people’s lives—particularly low-income people and communities of color—and make it virtually impossible for ordinary citizens to hold corporations and corrupt government officials accountable.
Fixing the problems in U.S. courts through structural reform
The problems in the federal court system go beyond specific substantive rulings; they are structural. The courts have been packed with conservative judges, and those judges are making it harder and harder for vulnerable people to realize their rights through the judicial system. These structural problems necessitate structural solutions.
The first step is to reduce bias on the courts. One way to address the issue starts with the type of people nominated and confirmed to be federal judges. To be sure, judges are not and cannot be wholly impartial. They are human and, like all people, have biases that affect their decision-making. But efforts can be made to ensure that judges have a broader range of lived experiences so that they do not systemically skew their decisions to the detriment of the less powerful. To that end, progressives should focus on nominating and confirming fair-minded judges with diverse backgrounds, rather than narrow-minded conservative elitists.
Given the breadth of the problem, however, policymakers also need to consider more far-reaching approaches, such as undoing conservative court packing, reducing the influence of partisan judges, and ensuring greater judicial accountability.
In addition, efforts must be taken to ensure that the federal judiciary works for more than merely corporations and the wealthiest few. All Americans deserve a fair chance to bring their claims before federal courts, regardless of net worth or insider connections. Barriers to justice—such as forced arbitration, arbitrary pleading standards, and other obstacles—must be eliminated. Restoring access to the courts is necessary to address corporate abuse and government wrongdoing, as well as to fully realize civil and economic rights.
Reforming the makeup of federal courts and improving access to justice are important and mutually dependent goals. For instance, restoring Americans’ ability to access federal courts through class action lawsuits or private rights of action is all for naught if those cases are not being overseen by fair and impartial judges. Similarly, ensuring that federal courts are fair makes little difference if people are kept from having their cases heard. By implementing reforms in both areas—altering the makeup of the federal bench and improving access to the courts—the judicial system can be rebuilt and justice can be restored.
Restoring fair-mindedness to the federal judiciary
As partisanship has deepened and conservative court packing has picked up steam, reformers have responded by putting forth numerous recommendations for addressing these issues. Proposals have run the gamut from imposing term limits on federal judges and Supreme Court justices to changing the structure of the court itself. To date, most of the debate has focused on whether significant reform is needed or wise. But to have a truly informed discussion, policymakers need a more detailed understanding of available options so that they can evaluate their strengths and weaknesses—and the extent to which suggested proposals are properly responsive to the problem at hand.
In evaluating structural reforms to the Supreme Court and the federal judiciary, several factors should be considered. To the greatest extent possible, reforms should discourage future norm-breaking, such as stealing judicial seats by effectively nullifying a president’s appointment authority. Norm-breaking is discouraged by undoing its beneficial effects for the norm-breakers; if the beneficial effects are allowed to stand, lawmakers will continue to ignore legal and procedural norms when it suits them, without fear of repercussion. For instance, judicial reform proposals that accept the current packed Supreme Court as a baseline encourage further norm-breaking. Moreover, proposals that make it harder to overturn precedents established by the packed court do the same.
Another important factor to consider is whether a specific proposal is likely to increase or decrease politicization of the Supreme Court, either because it creates more moderating influences on the court or because the influence of individual partisan justices is reduced. Moreover, proposals should be evaluated as to the extent they would be stable over time. This includes assessing the risk that a proposal would result in escalating policy responses from those opposed to it and the likelihood that any attempted escalating response would be successful within a reasonable time period. Policymakers should also be attentive to the extent that the success of a proposal relies on adherence to norms, given the lack of such adherence in recent times.
Finally, in light of the difficulty of passing a constitutional amendment—which requires a level of support that is unrealistic in today’s hyperpartisan political climate—proposals must be evaluated on their constitutionality if enacted via statute.
When it comes to the various options for restoring fair-mindedness to the judiciary, the authors evaluate the following proposals:
- Changing the structure of the Supreme Court by:
- Creating a Supreme Court comprised of a rotating panel of justices
- Creating an ideologically split Supreme Court
- Addressing conservative court packing by adding justices to the Supreme Court
- Curbing the influence of ideologue judges by:
- Establishing term limits for federal judges and Supreme Court justices
- Creating an independent commission for recommending federal judicial nominees
- Limiting Supreme Court jurisdiction
- Strengthening judicial accountability by:
- Expanding judicial ethics requirements and extending them to Supreme Court justices
- Creating a panel responsible for enforcing recusals and other ethics requirements
Changing the structure of the Supreme Court
Creating a Supreme Court comprised of a rotating panel of justices from the appellate courts
In responding to concerns over individual justices’ immense power and the bias of the current Supreme Court, one approach is to create a Supreme Court made up of a rotating panel of justices—including judges from lower federal courts—responsible for hearing cases.46 Under this proposal, every Court of Appeals judge would also be an associate justice of the Supreme Court. A panel would be chosen at random from among the pool of all appellate judges and current justices, and that panel would hear and decide cases for a set time period, after which a new panel would be constituted. A separate panel would be responsible for reviewing and granting certiorari.
During this time, selected judges could temporarily vacate their positions on lower federal courts so that they would not be responsible for two full caseloads. Any vacancies left on lower federal courts would be filled by judges serving in semi-retired “senior status.” Alternatively, if the term were short enough, selected judges could retain their lower court caseloads while traveling to hear oral arguments and deciding certiorari. This proposal could be combined with a requirement that judges reach supermajority consensus to overturn a federal statute.
Such a proposal would limit the ability of any one justice to exercise outsize influence, as they would hear and vote on only a limited number of cases. It would make it harder for ideological judges to drive certain views through the certiorari process, since it would be a different panel that would hear the cases. In addition, it is possible that such an approach would lead to a more modest Supreme Court that more closely hews to precedent, given that the members would only temporarily be hearing cases as members of the Supreme Court before returning to their appellate circuits.
Rotating panels would also help prevent the judicial favoritism toward certain lawyers or groups that currently plagues the court. Incorporating judges from different jurisdictions would mitigate this problem since new justices would likely be less familiar with the usual power players and therefore less inclined to grant them special treatment. Moreover, because the panel’s composition would change regularly, patterns of favoritism would be less likely to emerge. Ultimately, the result would be a fairer and more objective bench.
Furthermore, rotating panels could help address diversity concerns. Although a number of circuit court judges attended Ivy League law schools, many did not, hailing instead from state and local universities. Judges from lower federal appellate courts also have a broader array of professional experiences: Some have previously served in the military, been employed as public defenders, worked as policy experts, or had jobs in state and local government.
Creating a rotating panel of justices does not raise significant constitutional concerns since it would allow for judges to “hold their Offices during good Behavior,” as required by the Constitution. The only change would be to add a significant number of judges from the lower federal courts to the Supreme Court and then create a means of having the larger court hear cases, in line with how other federal courts operate. However, it is worth noting that some questions about this approach have been raised, particularly with respect to whether the role that the current justices would have on such a court would be consistent with the office to which they were appointed.
There is also the concern that, rather than eliminating politicization, this approach could actually expand it with respect to circuit nominations. Nomination fights over appellate judgeships would be more intense given the greater influence any one appellate judge could wield as part of a Supreme Court panel. Conservatives have already targeted and prioritized appellate court openings—hence their efforts to prevent Obama from appointing appellate judges and then change the rules to ram through Trump’s nominees. This proposal could exacerbate those fights and lead conservatives to try to appoint even more extreme nominees.
In addition, this proposal would not address the harmful effects of conservative court packing to date since the precedents set by the current packed Supreme Court would remain, and likely prove much more difficult to overturn.
There are practical considerations as well. Establishing a rotating panel of Supreme Court justices could instill greater randomness into court decisions, causing significant swings in the law that would be detrimental to society as a whole. It could lead to far too many Supreme Court precedents being overturned, or far too few. Furthermore, it is always possible that the composition of a randomly selected bench would end up being even more extreme or less diverse than the current court—though with the addition of a supermajority requirement for overturning statutes, the extent of the negative impact of such a panel would be lessened.
Creating an ideologically split Supreme Court
The Supreme Court’s nine-justice composition guarantees complete power and authority over the nation’s laws—and millions of people’s lives—to any five justices who share the same beliefs. This, of course, says nothing of the immense power wielded by “swing” justices, such as retired Justices Anthony Kennedy and Sandra Day O’Connor. Reliable voting blocs mean that the majority does not have to engage in meaningful debate or discussion with the other justices. As a result, ideological majorities have been able to establish extreme precedent that hurts everyday Americans.
For instance, during an era of unprecedented mass shootings and corporate power, the Supreme Court’s conservatives have limited gun safety laws and crippled unions. Voting rights laws have been curtailed, while voter suppression tactics reminiscent of Jim Crow have been upheld. These cases could have turned out differently had the conservative majority been compelled to persuade at least one of the more liberal justices to join them. Since Chief Justice Roberts joined the Supreme Court in 2005, its conservative justices have handed down 79 5-4 decisions along partisan lines.
To address this, the Supreme Court could be expanded to ensure an equal number of justices appointed by presidents of the two major political parties. Such an approach could also seek to correct for conservative court packing by adding two justices appointed by the next Democratic president and then having the next Republican president appoint one more justice, resulting in a 12-person split court.
An evenly split Supreme Court would eliminate the unfettered power of ideological majorities and result in fewer extreme decisions, since it would require justices to compromise and engage robustly with those on the bench who do not share their ideological views. To reach majority consensus, justices would have to find middle ground or narrow the scope of their rulings. However, an ideologically split Supreme Court would likely lock in many troubling precedents since it would be less likely that this newly formed court would reach consensus to overturn them.
Some critics also worry that such an arrangement would effectively render the Supreme Court unable to operate and create problems with legal uniformity across the country. But law professor and Supreme Court scholar Eric Segall argues that this fear is likely overstated:
“The Supreme Court decides only about 75 cases a year, amounting to fewer than 1 percent of all federal cases. We don’t worry about uniformity in the 99 percent of cases the Court never hears … Moreover, if a national rule is urgently needed for economic or other reasons, the justices will in all likelihood recognize that need and act accordingly, especially if an evenly divided court were to be a permanent aspect of our legal system.”
One very significant concern with this approach is how to ensure that the balance would be maintained over time, given that it would either require presidents of both parties to honor the system or the partisan representation requirements to be written into statute, raising challenging legal issues.
One option is to have a bipartisan commission provide presidents with a list of potential nominees from which to choose. For instance, if a Democratic president needed to appoint a Republican justice to balance out the Supreme Court, the commission’s Republican members could provide a list of options. Alternatively, the list could be drafted by Senate leadership of the opposing party. This arrangement, however, would either give rise to the potential for gaming or, if the president was required to choose from the provided list, raise serious constitutional concerns and likely invite a court challenge.
Another proposal along these lines is to expand the size of the Supreme Court to 15, with five justices appointed by a Republican president, five justices appointed by a Democratic president, and five justices selected unanimously or by supermajority from the lower courts by the other 10 members. The additional justices would be appointed two-years in advance before decisions on certiorari are decided and would be limited to one-year nonrenewable terms. If the 10 members were unable to unanimously select five judges to serve with them, then the Supreme Court would hear no cases that term.
Requiring sitting Supreme Court justices to reach unanimous or supermajority consent on new appointees would help to ensure that only judges with moderate temperament round out the court, as they would have to be acceptable choices to most of the sitting justices. However, this proposal raises the same concern about how the balance would be maintained over time, and perhaps most importantly, there are serious questions as to how the 10 members could select the remaining five justices in a constitutionally defensible manner.
Addressing conservative court packing by adding justices to the Supreme Court
Another approach is to address conservative court packing head-on. On March 16, 2016, following the death of conservative Justice Antonin Scalia, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill Scalia’s vacant seat on the Supreme Court. At the time, Republicans controlled the Senate—the congressional body responsible for confirming federal judicial nominees. In theory, this should not have been a problem, since Supreme Court justices had often been confirmed during times of divided government in the past.
Yet while constitutional norms demanded consideration of Garland’s nomination, Senate Majority Leader McConnell and his fellow conservative senators refused to do so. An Obama nominee would have altered the balance of the Supreme Court so that, for the first time in nearly 50 years, conservative appointees would not be the majority on the court.
The refusal to even consider Garland’s nomination drew widespread criticism across the political spectrum. In a letter to Senate leadership, 350 legal scholars warned that the refusal to consider Supreme Court nominees “is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.” In a Time op-ed, former Gov. Jon Huntsman Jr. (R-UT) and former Sen. Joseph Lieberman (I-CT) wrote: “There is no modern precedent for the blockade that Senate Republicans have put in place. Even highly-contentious nomination battles in the past … followed the normal process of hearings and an up-or-down vote.” A March 2016 poll found that two-thirds of Americans, including 55 percent of Republicans and 67 percent of Democrats, wanted the Senate to hold a hearing for Garland’s nomination, with most Americans saying that he should be confirmed to the Supreme Court.
The effort to steal this Supreme Court seat had real implications for the American people. Because of the Senate’s refusal to fill Scalia’s vacancy, the Supreme Court operated with only eight justices for over a year. During that time, it deadlocked on important cases, including one that would have prevented the inhumane deportation of immigrant families. Ultimately, however, conservative efforts to pack the courts paid off for them. Justice Neil Gorsuch was appointed by President Trump and confirmed by the Senate on April 7, 2017, securing conservative control over the Supreme Court.
To address this conservative court packing, policymakers could seek to undo its effects by expanding the size of the Supreme Court under the next progressive president in order to allow for the appointment of additional justices.
This approach is wholly consistent with the Constitution, which provides that, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” but does not set the size of the court. In fact, the size of the Supreme Court has fluctuated; since the court was set at six members in 1789, Congress has altered the Supreme Court’s size seven times.
Correcting prior partisan court packing has historical precedent. In 1800, after Thomas Jefferson was elected president, the outgoing majority party in Congress—the Federalists—decreased the size of the Supreme Court from six to five members in order to prevent him from filling a vacancy on the court. Once Jefferson’s party assumed control of Congress, it restored the six-member Supreme Court, so that Jefferson could make an appointment, and eventually increased the court to seven members in 1807.
The more well-known historical example, however, is that of former President Franklin Delano Roosevelt. In 1937, Roosevelt threatened to expand the Supreme Court from nine justices to as many as 15. He had grown frustrated by the court’s obstruction of his New Deal initiatives. By stacking the court with appointees of his choice, Roosevelt hoped that New Deal policies would be implemented without delay. While Roosevelt faced significant political opposition to this proposal, shortly after announcing his intentions, conservative Justice Owen Roberts joined with the progressive justices in West Coast Hotel Co. v. Parrish. Roberts’ decision to switch allegiances in upholding minimum wage requirements in West Coast Hotel Co., and his subsequent votes to uphold New Deal policies in a number of other cases, is known as “the switch in time that saved nine.”
This approach has the benefit of directly addressing the issues caused by conservative court packing, including harmful precedents established by the current packed Supreme Court. However, there are worries that adding justices to the court could result in a judicial arms race between conservatives and progressives in which each side seeks to expand the size of the court when it has the ability to do so. Indeed, concerns about a judicial arms race deserve careful consideration. If the court is expanded, it is possible—or even likely—that upon retaking power, conservatives would seek to further expand it. At some point, a continued back and forth might lead to public frustration and concern. Therefore, compared with other reforms, this approach would likely be less stable over time and could potentially harden the recent politicization of the court.
The American public could also end up viewing the Supreme Court as nothing more than another political body, weakening respect for and trust in its rulings. Because it lacks both the “purse” and “sword,” the federal judiciary relies upon the perceived legitimacy of its decisions. The public could construe the addition of more justices as another political power grab and, in turn, lose confidence in the third branch. This risk is likely heightened by the significant public attention that would attach to any effort to add justices. Moreover, adding justices would not reduce the significant role that chance plays in the makeup of the Supreme Court, as an unexpected vacancy could shift the power balance in the court to either direction.
But these concerns must be viewed in light of the current reality: Conservatives are already engaged in a massive court packing effort that has politicized the judiciary to an unprecedented degree. The question is not whether to pack the courts but how to respond to it.
Following conservatives’ successful efforts to prevent Garland’s nomination from being considered, the impact of changes to the number of justices on the Supreme Court on people’s respect for the rule of law is uncertain. While there are no recent examples, policymakers can note that the Supreme Court’s size has been altered in the past and that these changes have neither undermined its authority nor its ability to function. Moreover, they should consider that concerns about the court are likely to arise in the absence of any action too, as the conservative-packed Supreme Court overturns or undermines popular long-standing rights and democratically enacted laws.
It is worth noting that this proposal has application beyond the Supreme Court as well; given conservative efforts to pack the appellate courts, policymakers could adopt a similar approach to that issue by adding new circuit judgeships.
Curbing the influence of ideologue judges
Establishing term limits for Supreme Court justices and federal judges
Setting term limits for Supreme Court justices and federal judges is a particularly popular reform among legal scholars and the public alike. The United States is unique in that it is the only democracy whose federal judges enjoy life tenure. Moreover, significant changes in life expectancy since the late 18th century mean that the impacts of judicial life tenure are far different than at the time of the nation’s founding. Over the past 170 years alone, average life expectancy in the United States has increased from an average of about 38 years to nearly 80 years. As a result, Supreme Court justices are serving significantly longer terms than their early predecessors.
U.S. Supreme Court justices who served between 1789 and 1828, on average, held their posts for less than 10 years, vacating the bench before the age of 60. Meanwhile, justices appointed after 1980 who have since left, on average, served for more than 25 years and remained on the Supreme Court until they were close to 80 years old. If these trends persist, nearly half of the justices currently serving on the Supreme Court will remain on the bench until at least 2035.
A July 2018 Morning Consult/Politico poll found that 61 percent of Americans approve of term limits for Supreme Court justices, including 67 percent of Democrats and 58 percent of Republicans. Even some current Supreme Court justices, such as Chief Justice John Roberts and Justice Stephen Breyer, have expressed support for term limits. In a 1983 White House memo, Roberts wrote, “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
Congress does not necessarily need to pass a constitutional amendment to establish term limits for federal judges. Rather, term limits may be established through simple legislation. Article III, Section 1 of the U.S. Constitution states that federal judges “shall hold their Offices during good Behavior.” This provision has been interpreted as granting life tenure to federal judges. The Constitution is noticeably silent, however, on what is meant by “Offices.” In other words, the Constitution is clear that federal judges must remain on the judiciary until death, retirement, or impeachment but says nothing about judges remaining at their original posts.
A number of proposals for term limits have emerged over the years, but the most popular is for 18-year nonrenewable terms. Supreme Court justices who complete their term would be assigned senior nonactive status and fill in for other justices who are forced to recuse themselves. Alternatively, they could choose to be reassigned to one of the circuit or district courts. Judges serving on other federal courts could similarly be delegated to senior nonactive status once their term expires. Regardless of their new posts, judges would retain their original salaries. And if they were to die or retire before their term expired, the sitting president would be empowered to appoint a temporary justice from the circuit or district courts to fill the open position until the term of the former justice was set to expire. Once a permanent replacement was appointed, temporary judges would go back to serving on the federal court from which they came.
With 18-year nonrenewable term limits, new Supreme Court justices would be appointed every couple years, giving presidents of both major parties equal opportunity to influence the court’s composition. This would help to avoid the problem of allowing a single president to dictate the makeup of the federal judiciary for a generation simply by entering office at an opportune time. It should also help to alleviate “the destructive warfare” that has become commonplace in Supreme Court confirmation fights. Under the current nine-member configuration, presidents serving consecutive terms could have an outsized influence on the Supreme Court, particularly if sitting justices retire or pass away unexpectedly. To the extent this is a concern, however, term limits could be coupled with an expansion of the Supreme Court to ensure that no single president is able to appoint a substantial percentage of justices.
There are a number of benefits to term limits. They have the potential to increase diversity by allowing for new appointments while simultaneously diminishing the influence of any one judge, since judges would be cycled in and out more frequently. Term limits could also ease concerns over elderly judges with health problems presiding over cases late in life.
However, term limits would not directly address the current partisanship on the Supreme Court and, given that most conservative justices were recently appointed, would not reduce the impact of conservative court packing.
They would also have the potential to increase partisanship and create conflicts of interest. One of the strongest arguments in favor of life tenure is that it insulates federal judges from such conflicts, especially from potential employers who come before their chambers. For judges who choose to seek employment elsewhere—particularly in the private sector—strong ethics requirements must exist to protect against conflicts of interest. Once they retire, judges could be prohibited from working on behalf of corporations or organizations, including subsidiaries, that were parties in any case they oversaw.
Lifetime bans of this kind may seem harsh but are vitally important in protecting the integrity of the judiciary, given federal judges’ immense power. Judges vacating the bench should be required to recuse themselves in cases where potential employment has been discussed with one of the parties. Recusals should apply regardless of whether a hard offer has been extended.
The more challenging issue is how to deal with judges who view their limited time on the bench as an audition for political office or some other position within the political ecosystem. It is not clear how to design recusal requirements to address this concern, and it could create an even more politicized judiciary than already exists.
In addition to these concerns, while some scholars believe statutory term limits pass constitutional muster, others disagree. There are ways to address the issue that do not raise any such concerns, but such approaches are very problematic. For example, some scholars have suggested that instead of passing legislation requiring term limits, the president and Congress could refuse to nominate and confirm judges who do not formally pledge to serve limited terms. As described by law professor Robert Bauer: “Over time, a custom or expectation would develop. No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost 150 years after Washington.”
While this approach could work in theory, it would likely lead to substantial issues in practice. Nonlegislative options are open to significant risk of gaming, particularly in a hyperpartisan environment. For instance, the only enforcement mechanism would be for Congress to impeach a judge that violates the commitment—a particularly challenging proposition. And any president could simply choose to ignore the requirement provided the Senate does not object. Given that the precipitating factor for discussing these types of court reforms is that partisans have repeatedly violated norms in the nomination and confirmation of judges, it seems unlikely that a reliance on norms would fix the issue.
Creating an independent commission for recommending federal judicial nominees
Currently, the president has complete discretion over federal judicial nominations. Presidents often seek advice from trusted advisers and the U.S. Department of Justice. But mostly, the process is motivated by the president’s personal preferences and ripe for undue influence by outside groups with their own agendas. The end result is a nomination process that prioritizes ideologues over character and competency.
The partisan nature of the process can hurt the courts’ credibility. President Trump, for example, made clear beginning in 2016 that he would nominate only Supreme Court justices who were recommended by the Federalist Society and would overturn Roe v. Wade. Statements of this kind, coupled with Trump’s propensity to demand loyalty from those he places in coveted positions, have raised legitimate questions over the independence of Justices Neil Gorsuch and Brett Kavanaugh.
One way to minimize partisan influence over judicial nominations is to create an independent commission tasked with recommending qualified judges for appointment to the federal bench. The commission could be comprised of retired judges from the district and circuit courts, as well as representatives from the American Bar Association (ABA). Experts in judicial ethics could be appointed to lend an academic perspective on ethical trends and historical red flags. Similar commissions are used to appoint judges to courts in several states and other democracies.
In addition to ensuring that judicial nominees are objectively qualified and even-tempered, the commission could help improve judicial diversity by placing an emphasis on recommending judges belonging to historically underrepresented groups with diverse backgrounds and experiences.
The judicial nominations process offers perhaps the most effective way to improve diversity on the federal bench. Former President Obama recognized this during his tenure in office. Of federal judges appointed by Obama, 42 percent were women and 36 percent were nonwhite. No other administration came close to the rate at which Obama appointed women and people of color to the bench. Unfortunately, Trump has moved in the opposite direction, with very little diversity among his nominees. It is crucial that future administrations reverse Trump’s recent trend and instead follow Obama’s lead in prioritizing diverse candidates for federal judgeships.
While there are certainly benefits to an independent commission for nominating judges, there are also some real practical concerns to this approach. An independent commission could only serve in an advisory role; Congress could not limit the president’s power granted under the Constitution by giving the commissions the authority to actually nominate judges. This means that a president could simply choose to ignore the commission’s recommendations. To address this concern, a process could be designed to incentivize the president to choose someone from the commission’s non-binding list—for example, allowing nominees recommended by the commission to be confirmed with a simple majority in the Senate, while all other nominees could require supermajority approval.
However, even this modified proposal has issues. It would not address conservative court packing, as it would operate only prospectively. Moreover, it would heavily rely on compliance with norms, since the Senate could always change its rules to confirm nominees through a majority vote regardless of whether they were chosen from the commission’s list. As with other norms-based approaches, this proposal seems unlikely to have a significant impact in the current environment.
Limiting the jurisdiction of the Supreme Court
Rather than reduce the partisanship of the Supreme Court itself, a more extreme proposal would simply limit the ability of the court to hear certain cases.
Congress has the authority to narrow federal courts’ jurisdiction, otherwise known as court stripping. Article III, Section 2 of the U.S. Constitution requires the Supreme Court to have original jurisdiction over limited classes of cases. Specifically, the Supreme Court has original jurisdiction “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.” Congress’ authority to limit the appellate jurisdiction of other federal courts derives from the “judicial vesting clause” and the “congressional powers clause” found in articles I and III of the U.S. Constitution. Article III, Section 2’s “exceptions clause” gives Congress power to limit the Supreme Court’s appellate jurisdiction.
The Supreme Court has occasionally recognized Congress’ power to limit its and other courts’ appellate jurisdiction. That said, there is limited case law on the subject. As a result, the line between permissible and unconstitutional court stripping is unclear and hotly debated among legal experts. For example, the Supreme Court has said that Congress cannot direct judges to decide cases in specific ways but can amend federal law in ways that are determinative of active cases. In other instances, the Supreme Court has asserted that court stripping is limited in situations implicating due process rights and regarding the applicability of retroactivity to final judgements. Even here, however, precedent is vague at best.
Debate in the Supreme Court over Congress’ court-stripping power
The 2018 case Patchak v. Zinke illustrates the lack of clarity on Congress’ court-stripping powers. Patchak involved the legality of a 2009 statute—the Gun Lake Trust Land Reaffirmation Act—which prohibited federal courts from hearing cases involving an ongoing dispute between the U.S. Department of the Interior (DOI) and a parcel of land called the “Bradley Property.” The statute went further, directing that any federal cases related to the Bradley Property “shall be promptly dismissed.” The central question was whether the Gun Lake Act was an abuse of Congress’ power. A plurality of the Supreme Court found that the act was constitutional, reasoning that it simply modified existing law; whereas federal courts previously had authority to review cases involving DOI and the Bradley Property, “Now they do not.” In other words, the statute did not go as far as requiring federal courts to decide cases for one party over another. The dissent saw things differently. To them, Congress violated Article III of the Constitution when it required judges to dismiss cases like Patchak outright. Although the act did not direct courts to find for plaintiffs or defendants per se, automatic dismissal has the practical effect of benefiting one party over another. Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote a separate concurrence, arguing that the law was not a court-stripping statute at all but merely restored the United States’ sovereign immunity.
There are a few different approaches to court stripping: Congress could potentially prohibit the Supreme Court from hearing certain types of cases or try to revoke its appellate jurisdiction altogether and permit the court to hear only those cases the Constitution explicitly requires.
This proposal to limit the reach of the current Supreme Court raises a number of serious concerns. It would make it difficult to undo existing precedent that would still be binding on lower courts. There is also a high risk of partisan escalation if the Supreme Court were stripped of jurisdiction over a limited set of cases, as opposed to being restricted only to original jurisdiction. Conservatives would likely respond by stripping the court of jurisdiction over more cases, and progressives would later likely respond in kind—eventually leading to very limited jurisdiction for the court.
In addition, court stripping would lead to diverging legal policy across the country since the Supreme Court could not address circuit splits. While other proposals would make it harder for the Supreme Court to overturn lower court decisions, this approach would make it impossible. So even in the most egregious cases, lower court decisions would be the final word.
There are real concerns that such an approach could disproportionately affect historically underrepresented groups. For instance, in certain regions, lower federal courts could severely limit reproductive rights or the rights of LGBTQ people. Leaving determinations of law in the hands of regional courts would not be a problem for Americans privileged enough to move to more favorable areas, but it would leave vulnerable people without critical resources and access to justice.
Strengthening judicial accountability
In addition to reducing partisanship on the Supreme Court by changing its makeup, steps can be taken to ensure that the justices and other federal judges are less susceptible to special interest influence.
There is currently no binding code of conduct for Supreme Court justices. At the same time, the aspirational code applicable to other federal judges is inadequate. The absence of strong ethics requirements and enforcement mechanisms results in conflicts of interests being left unaddressed, leading to potential miscarriages of justice.
Federal judges have overseen cases in which they, their friends, or their family members stand to personally benefit. Others are wined and dined by wealthy corporations and special interests who come before the courts. That judicial decisions may be unduly influenced by conflicts of interest or personal prejudice is deeply problematic for anyone who values an impartial justice system. Even the mere appearance of impropriety is enough to raise significant concern. Instances of corruption or questions about a judge’s objectivity damages public faith in the third branch. Ethics reform is needed to ensure that judicial decision-making is based on law, not financial interests or personal relationships.
“The fact that the Supreme Court is not held accountable to any official code of conduct or ethics standards directly jeopardizes the public trust.” Sarah Turberville, director of the Constitution Project at the Project on Government Oversight
Expanding judicial ethics requirements and extend them to Supreme Court justices
The Judicial Conference of the United States, comprised of federal judges and headed by the chief justice of the Supreme Court, creates and periodically updates a code of conduct for U.S. judges. The code, which is not applicable to Supreme Court justices and is largely aspirational, includes general guidance on how federal judges should conduct themselves on and off the bench. It includes five ethical canons with which federal judges are expected to comply:
- Judges should uphold the integrity and independence of the judiciary, including by conducting themselves honorably both personally and professionally.
- Judges should avoid impropriety and the appearance of impropriety in all activities, including by avoiding conflicts of interest and membership in any group or organization “that practices invidious discrimination on the basis of race, sex, religion, or national origin.”
- Judges should perform the duties of the office fairly, impartially, and diligently, requiring recusal when their impartiality “might reasonably be questioned.”
- Judges may engage in extrajudicial activities that are consistent with the obligations of judicial office but may not participate in extrajudicial activities that interfere with their judicial duties or “reflect adversely on [their] impartiality.”
- Judges should refrain from political activity, such as holding political office, publicly endorsing parties or candidates, or making speeches for political organizations or politicians.
Each of the five ethical canons has sub-canons providing additional guidance on judicial conduct. The Judicial Conference has additional requirements for judges receiving gifts or outside income. And the Ethics in Government Act of 1978 requires federal judges and Supreme Court justices to file annual financial disclosures.
Enforcement mechanisms for ensuring compliance with these rules and obligations are limited. The Judicial Conduct and Disability Act allows individuals to file complaints against lower court judges for alleged unethical behavior. These complaints may be reviewed by a special committee of judges, but like the code of conduct, the law does not apply to Supreme Court justices.
Congress also has the power to impeach federal judges for bad behavior. However, since 1800, only 15 federal judges have been removed by Congress through impeachment. The lack of standards and enforcement mechanisms for judicial ethics means that federal judges are largely responsible for policing themselves.
For instance, there is nothing stopping judges from accepting exorbitant speaking fees from corporations and interest groups with stakes in federal cases. In 2008, Supreme Court Justice Clarence Thomas accepted an all-expense-paid speaking engagement in Palm Springs, California, funded by the Federalist Society and Koch Industries. Two years later, Thomas ruled in favor of corporate interests, along with the other conservative justices in Citizens United v. FEC, which benefited the Koch brothers. Government watchdogs had urged Thomas to recuse himself from the case, but he refused.
Similarly, corporate-funded interest groups are permitted to pay federal judges to attend seminars where they hear the industry perspective on issues facing the courts. Often, these are all-expense-paid trips to lavish resorts—extended free vacations. Like speaking fees, all-expense-paid trips can cloud judges’ judgement, particularly if the trip’s financiers come before their chambers. From 2004 to 2014, Justice Scalia took more than 250 trips that were paid for by various groups and individuals, including trips to Hawaii, Ireland, and Switzerland. Hefty speaking fees and all-expense-paid trips are an unsubtle attempt to make judges more amenable to the arguments that corporations and other moneyed interests make in court. As opined by law professor Stephen Gillers, “the greater the luxury, the greater the risk of public suspicion.”
In reforming judicial ethics, it is of paramount importance that ethics requirements apply equally to Supreme Court justices and other federal judges. Chief Justice Roberts claims that ethics codes are not necessary for the Supreme Court because justices already voluntarily adhere to codes of conduct. But the above examples negate that argument. In addition to ensuring they apply to the Supreme Court, ethics requirements should be clearly specified and expanded upon.
For instance, federal judges and justices could be banned from owning individual stocks or required to disclose private events they attend, as well as the name of the individual or entity responsible for financing their appearance and travel. Lavish all-expense-paid trips and speaking engagements could be banned, except for reasonable reimbursements for legitimate educational events. Alternatively, any judicial travel or speaking engagement funded by private entities could be subject to preapproval by a judicial ethics committee such as the one explored in the next section. Going further, Congress could ban judicial junkets and other gifts to sitting judges altogether. Imposing a binding code of ethics on the Supreme Court raises constitutional questions. However, some scholars have pointed to Congress’ ability to make other institutional changes, such as altering the court’s size, as evidence that codes of conduct are constitutional.
Besides strengthening ethics standards for sitting judges, elected officials must pay more attention to the ethical and professional competency of judicial nominees. For instance, a number of federal judges nominated by President Trump have prior associations with the Alliance Defending Freedom, which the Southern Poverty Law Center has designated as an anti-LGBTQ hate group. Judges with ties to hate groups cannot be relied upon to render fair and impartial judgements in cases affecting historically underrepresented communities. Even if judges can separate themselves from personal biases, their association with such groups bring into question their objectivity—and, in turn, the legitimacy of their rulings.
Potential judges receiving “not qualified” ratings from the ABA’s standing committee on the federal judiciary should also have their nominations withdrawn or voted down. The ABA rating system considers a nominee’s integrity, professional competence, and judicial temperament and has been relied upon by presidents to varying degrees since the 1950s. Within just his first two years in office, President Trump has nominated six judges who received “not qualified” ratings by at least a majority of the ABA. Four of the judges were ultimately confirmed to the federal bench. ABA ratings provide the most basic assessment of a nominee’s ability to serve on the federal judiciary; a nominee who cannot meet the ABA’s baseline requirements does not merit confirmation.
Finally, no judicial nominee should be confirmed if an investigative panel concludes that ethics complaints made against them merit further review. In 2018, the Senate majority rushed to confirm Brett Kavanaugh while he was being reviewed by a judicial panel for 83 ethics complaints. Once Kavanaugh was appointed, the investigative panel was forced to dismiss all of the complaints because although they were deemed “serious,” the panel lacked statutory authority over Supreme Court justices.
Creating a panel responsible for enforcing recusals and other ethics requirements
Strong ethics requirements must be coupled with effective enforcement mechanisms. Enforcement is needed for recusals and to ensure compliance with other ethical requirements. Although judicial ethics urge judges to recuse themselves in certain cases, they currently cannot be forced to do so. The appeals process offers litigants one option for holding judges that refuse to recuse themselves accountable. In 2009, the U.S. Supreme Court reversed a decision by the Supreme Court of Appeals of West Virginia in Caperton v. A.T. Massey Coal Co. after one of the judges received a large campaign contribution from Massey’s CEO, ruling that the potential conflict of interest violated plaintiff party’s due process rights. Of course, this is not an option for the Supreme Court, whose decisions cannot be appealed. For the most part, recusals fall solely within judges’ discretion.
Lack of enforcement on recusals leads to failures of justice. In 2008, Judge Linda R. Reade, chief judge of the U.S. District Court for the Northern District of Iowa, oversaw the imprisonment of hundreds of undocumented immigrants in government and private detention centers following the raid of an Iowa slaughterhouse. The event raised suspicions once it was revealed that Reade’s husband owned stock in two of the country’s largest prison companies. Even worse was the fact that Reade’s husband bought additional stock in the two companies—collectively worth between $30,000 and $100,000—days before the raid, after Reade had already been notified that the raid would occur. By the time Reade’s husband sold the stocks a few months later, they were collectively worth between $65,000 and $150,000. It is hard to know whether Judge Reade’s advance knowledge of the raid was the impetus for her husband’s last-minute acquisition of additional stocks. Regardless, stories such as these damage the courts’ legitimacy.
Supreme Court justices have also refused to recuse themselves in important cases. In 2004, the Sierra Club sued then-Vice President Dick Cheney in Cheney v. United States District Court for the District of Columbia to access the records of a White House energy task force comprised of corporate lobbyists. Scalia, a close friend of Cheney, refused to recuse himself, suggesting that friendship was not grounds for recusal “where the personal fortune or the personal freedom of the friend” is not at issue. Although Cheney was not at risk of imprisonment or heavy fines, he had an undeniable stake in the case’s outcome. Scalia and the court ruled in Cheney’s interest.
Beyond recusals, strong penalties must exist for violating ethics laws and codes of conduct. For example, Justice Clarence Thomas failed to disclose on his federal disclosure filings the six-figure salary his wife received from conservative groups such as the Heritage Foundation. The conservative organizations had stakes in several important cases before the Supreme Court, including those pertaining to the Affordable Care Act and Citizens United v. FEC. It is important that judges’ financial disclosures be complete and accurate so that litigants and the public are aware of potential conflicts. Other judges have gone against protocol by letting their political preferences be known or by making comments perceived as racist and sexist.
One way to enforce recusals and other ethical requirements is to create a permanent independent panel tasked with investigating ethics complaints and taking disciplinary action. Complaints of judicial ethics violations would be automatically referred to the panel, which would have broad investigative power. The panel could be comprised of retired judges and those serving in senior status. Its members would be subject to strict recusal requirements if the subject of an investigation served as one of their clerks or if there were other social connections.
Some express concern that an independent panel of this kind would be unconstitutional under Article III, Section 1 of the Constitution. However, because the panel would not be able to overturn cases or order retrials, it would not endanger the Supreme Court’s core responsibilities. Establishing a panel of this type could significantly improve accountability and transparency in the judicial system.
Restoring access to the courts
Conservative efforts to politicize the courts go beyond packing them with extreme conservative judges who will help advance conservative policies. Conservatives also seek to change the procedural rules that determine how people access the courts and the terms on which their claims are heard. These technical rule changes significantly affect who sees their rights vindicated in court.
Procedural rule changes have curtailed access to justice for society’s least powerful, including workers and low-income people, making it harder for them to hold large corporations responsible for wrongdoing. In recent years, the Supreme Court has been particularly problematic, upholding forced arbitration requirements, restricting private rights of action, and making it harder for vulnerable plaintiffs to get an audience before a judge.
One especially pernicious effort has been to limit the use of class action lawsuits, which Judge William G. Young of the U.S. District Court for the District of Massachusetts has said “is among the most profound shifts in our legal history,” helping to ensure that “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.” Class actions have historically been relied upon to stop institutionalized discrimination and abuse, which is difficult to address through litigation brought by an individual plaintiff. As the Supreme Court recognized in Amchem Products Inc. v. Windsor, class actions provide “vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.’”
Beyond the attack on class action lawsuits, the courts have supported the rise of forced arbitration agreements, which put consumers and workers in business-friendly arbitration, rather than in front of a judge. Moreover, they create a range of other barriers for people seeking to bring suits that further reduce access to the courts—from requiring plaintiffs to meet burdensome pleading standards to limiting private rights of action.
This report does not address all the ways individuals and communities are denied access to justice. For instance, it does not examine the deterrent effect of exorbitant court and attorney fees; power dynamics and inadequate representation in landlord-tenant and immigration courts; or communication barriers for people with limited English proficiency. Nor does the report address issues in the criminal justice system or with the limited resources and tools available to nonprofit legal service organizations. These systematic problems prevent countless people from realizing important rights and therefore require policy responses as well.
Nonetheless, the reforms explored here could go a long way in restoring access to the courts for everyday Americans and include the following:
- Restoring plaintiffs’ ability to bring class action suits
- Prohibiting forced arbitration in all consumer and employment contracts
- Restricting secret settlements and record sealing in cases affecting public safety
- Restoring the power of private attorneys general to enforce federal law
- Restoring simpler pleading standards
Restoring plaintiffs’ ability to bring class action suits
Class actions are a critical tool for people—particularly workers and consumers—to seek justice against systemic corporate abuse. A study by the Consumer Financial Protection Bureau found that class action lawsuits have resulted in billions of dollars being returned to victims of corporate misconduct.
Class actions promote cases that have widespread impact but result in very small individual rewards, such as corporate fraud, product safety, civil rights, or employment claims. For example, in 2009, toy manufacturer Mattel and its subsidiary Fisher-Price settled a class action lawsuit involving families exposed to lead-contaminated toys—which can cause serious health problems—agreeing to pay class members in the form of refunds and for out-of-pocket expenses for lead testing. Class action lawsuits also allow class members to share the financial burdens of legal and court fees, which can be substantial in cases involving wealthy corporations.
In response to an increase in class action lawsuits during the second half of the 20th century, corporations and employers began prohibiting workers and consumers from bringing class actions as part of employment contracts and consumer agreements. These are what are termed “collective action waivers,” which differ from, but can be coupled with, forced arbitration clauses.
The Supreme Court has also shown a hostility toward class action suits, with a long line of cases upholding bans or restrictions against them. For example, in 2011, the Supreme Court decided Wal-Mart v. Dukes, the largest class action lawsuit in U.S. history. Dukes made it harder for class action plaintiffs to be certified under Rule 23 of the Federal Rules of Civil Procedure. The plaintiff class included more than 1 million current or former female Walmart employees who sued the company for allegedly engaging in systemic sex discrimination. The district and circuit courts found that the plaintiffs had satisfied traditional class certification requirements under Rule 23, including numerosity, commonality, typicality, and adequacy of representation. However, the Supreme Court’s conservative majority disagreed, finding specifically that the women did not share enough commonalities—common facts or legal issues—to meet its standards.
According to the conservative justices, it was not enough that members of the class were all women who currently or previously worked at Walmart and were subjected to systematic sex discrimination. Two years later, the conservative justices again rejected class certification for a group of plaintiff consumers in Comcast v Behrend. In this case, the majority found that the plaintiffs failed to adequately measure damages. Litigators and scholars have interpreted Dukes and Behrend as imposing arbitrarily onerous pleading and pretrial discovery requirements that make it exceptionally difficult for plaintiffs to bring class action suits.
In another example of the Supreme Court’s anti-class action jurisprudence, the 2011 case AT&T Mobility v. Concepcion struck down a state ban against class action waivers in arbitration consumer agreements. This hostility toward class action lawsuits was reiterated in 2018 in Epic Systems Corp. v. Lewis, which validated the inclusion of class action waivers in forced arbitration employment contracts. An estimated 24.7 million American workers are subject to class action waivers in forced arbitration procedures; millions more are effectively prohibited from bringing class action suits because of the nature of their forced arbitration procedures.
Congress, too, has acted to restrict class actions. The Class Action Fairness Act (CAFA) of 2005 expands federal courts’ jurisdiction over class action cases. This expansion has been problematic for plaintiffs, since state courts are considered more favorable to class action plaintiffs than their federal counterparts. For corporations, CAFA signified victory by making it harder for workers and consumers to successfully sue them for wrongdoing. In warning about CAFA’s detrimental impact, then-House Majority Leader Nancy Pelosi (D-CA) noted: “When Americans are injured or even killed by Vioxx or Celebrex or discriminated against by Wal-Mart, they may never get their day in court.”
Adding to this problem, legal aid organizations receiving funding through the federally appropriated Legal Services Corporation (LSC) are also banned from bringing class action lawsuits. Prior to these changes, LSC-funded legal aid organizations were able to bring class actions on behalf of clients with identical claims against the same repeat offender. The consolidation of cases saves legal aid attorneys valuable time and resources while providing their clients with all the benefits of class action suits.
Before being prohibited from doing so, legal aid lawyers brought class actions protecting low-income pregnant women and children at risk of malnutrition from the denial of lifesaving health and nutritional benefits. They protected elderly people from being deprived of medical reimbursements and assisted individuals in receiving secured disability benefits. Class actions also have been used to help workers of colors who have been cheated out of wages and benefits by discriminatory employers. Without the ability to bring class action lawsuits, these legal aid organizations—and, most importantly, their clients—are deprived of a powerful weapon against forces of exploitation, as well as effective remedies for institutionalized misconduct.
To address these issues, lawmakers should undo recent efforts to limit class action suits. Class action waivers in consumer and employment settings should be prohibited, and the pre-Duke standard for certifying a class should be reinstated. Furthermore, CAFA should be repealed or narrowed to prevent its enforcement in worker and consumer class actions, and LSC grantees should be allowed to bring class action suits again.
The limitations of Legal Services Corporation grantees prevent people from accessing justice
The existing legal aid delivery system was created through the 1974 Legal Services Corporation (LSC) Act with the goal of increasing civil legal services and protections for low-income Americans and other underrepresented groups. Federally funded legal aid organizations grew from former President Lyndon B. Johnson’s “War on Poverty” during the 1960s and continue to play a vital role in providing vulnerable members of society access to justice.
Legal aid programs protect against unlawful eviction and foreclosure, discrimination by employers, improper denial of lifesaving medical care, and other legal problems that threaten the basic necessities of life. For 45 years, these publicly funded civil legal aid organizations have provided one of the most effective mechanisms for protecting low-income people from systemic abuse and ensuring access to employment, education, housing, health care, safety, and stability.
But these organizations face significant limitations to the scope of their work. In addition to prohibitions against bringing class action lawsuits, LSC groups are barred from representing certain clients, including incarcerated people and people charged with drug offenses facing eviction. Restrictions apply to other sources of funding received by LSC grantees as well.
Resources are also an issue. In 1996, the LSC’s budget was slashed by nearly one-third. By 2016, LSC groups were being funded at levels $100 million less than what they were awarded in 1976, after adjusting for inflation. Meanwhile, President Trump has sought to eliminate funding for LSC groups altogether in every budget proposal he has put forward.
Without adequate funding, legal aid lawyers are forced to turn people away and operate with insufficient resources. According to the LSC’s own estimates, in 2017, low-income Americans were expected to have approached LSC-funded legal aid offices with 1.7 million problems, but more than half would have received only limited or no legal help due to a lack of resources. There has, however, been some recent improvement in funding: In 2019, Congress increased LSC funding to $415 million, approximately $30 million higher than the amount Congress allocated to the LSC in 2016. The increase indicates growing bipartisan support for LSC legal aid organizations and a recognition of their value to people and society.
Prohibiting forced arbitration in consumer and employment contracts
Like collective action waivers, forced arbitration agreements—which show up in everything from employment contracts to credit card and cell phone agreements—are another way to skew the justice system in favor of corporations and disadvantage everyday Americans. As noted in the previous section, forced arbitration clauses in employment or consumer contracts can be standalone or combined with class action waivers.
Through forced arbitration agreements—often purposely designed to be confusing—workers and consumers harmed by employers or manufacturers lose the right to have their case heard by a judge. Instead, they must have their grievances settled in a private setting by an outside party who is often selected and compensated by the company accused of wrongdoing. In forced arbitration proceedings, “the corporation owns the referees.” In fact, many arbitration groups, such as the American Arbitration Association, have financial interests—including stock shares—in the corporations they serve. Consumers bringing affirmative claims in arbitration win only about 20 percent of the time; corporations, meanwhile, win in arbitration proceedings more than 90 percent of the time when they bring claims or counterclaims against consumers.
When it comes to forced arbitration, as the name suggests, employees and consumers are not given a choice. In most cases, job applicants are required to sign forced arbitration agreements prior to being employed. If they refuse, they are unlikely to be hired. The same goes for consumers who want to purchase products; they either agree to resolve future disputes through forced arbitration or are unable to purchase a cell phone, computer, or other products on the market.
Through mandatory arbitration, workers and consumers are forced into a corner, which makes it easier for powerful corporations to tip the scales in their favor. Arbitration is so cost-prohibitive to the average worker and consumer that they are unlikely to bring complaints against corporations at all. For example, arbitration fees can be hefty, sometimes exceeding any award the worker or consumer bringing the complaint may receive. Even when workers and consumers do bring cases in arbitration and succeed, the payoff is often low. Consumers who win in arbitration receive 12 cents for every dollar they claim, whereas corporations that win receive 91 cents for every dollar they claim.
The secretive and nonprecedential nature of arbitration proceedings makes it difficult for employees or consumers to establish patterns of wrongdoing, which can be vital in succeeding on claims. Decisions made by the arbitrator, who may not have legal training, are binding and cannot be appealed, regardless of whether the decision was made in good faith.
While forced arbitration agreements are bad for employees and consumers across the board, they disproportionately affect low-income Americans and other historically underrepresented groups. Forced arbitration requirements are most common in low-wage workplaces and in employment settings with disproportionate numbers of female and African American employees. Since 1995, the number of workplaces requiring forced arbitration for employee-employer disputes has increased sevenfold. Nationwide, an estimated 60.1 million American workers are required to undergo forced arbitration in resolving employment grievances.
Forced arbitration agreements have been upheld by the Supreme Court even in the most extreme circumstances. For example, the U.S. Supreme Court vacated a 2012 decision by the Supreme Court of Appeals of West Virginia that found it was unconscionable to require parties to arbitrate matters of death or personal injury.
Furthermore, as noted in the previous section, the Supreme Court has relied upon the Federal Arbitration Act (FAA) to restrict class actions. Just last year, in Epic Systems Corp. v. Lewis, it ruled that the FAA supersedes even important workers’ rights laws such as the National Labor Relations Act. The Supreme Court’s expansive interpretation of the FAA puzzles legal experts who maintain that Congress intended the law to apply only to corporate-to-corporate dealings, and not dealings with individuals. As a result of the court’s corporate protectionism, “Corporations are allowed to strip people of their constitutional right to go to court.”
Fair processes should exist for workers and consumers to obtain justice for corporate wrongs. In tipping the scales for powerful corporations, forced arbitration is fundamentally unfair and is an insufficient remedy for holding bad actors accountable. Forced arbitration agreements should be banned in employment and consumer contracts.
While forced arbitration must be eliminated, there may be instances where arbitration is preferred by both parties. In that case, parties can voluntarily elect to use arbitration after a dispute arises.
Restricting secret settlements and record sealing in cases affecting public safety
One way that the wealthy and corporations seek to limit future liability is by limiting access to information about their wrongdoing through secret settlements and record sealing.
Proponents of secret settlements say that they are beneficial to both parties involved in a dispute, as they avoid expensive, drawn-out trials and facilitate honest conversation. Moreover, the nondisclosure agreements (NDAs) at the core of secret settlements protect parties from potential embarrassment or economic consequences resulting from public hearings. Settlements with NDAs are sometimes voluntarily entered into by victims of sexual assault who may want to keep the assault private due to lingering stigma over sexual assault and the difficulty of obtaining relief through the justice system.
In addition to NDAs, a party may seek a protective order by a court requiring that records pertaining to the settlement be sealed from the public. Common law, along with the Federal Rules of Civil Procedure, has emphasized the public’s right to examine court documents. And in 2011, the U.S. Judicial Conference announced a policy restricting record sealing in federal courts: “[A]n entire civil case file should only be sealed when … sealing … is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.” Despite this, judges and lawyers are not always compliant. Overworked judges may be inclined to grant record-sealing requests to settle cases out of court.
The corporations and wealthy people who argue for secret settlements largely insist they want to protect personal privacy or trade secrets. The real purpose, however, seems to be to protect their financial interests. In the past, secret settlements have been used by corporations as a more cost-effective way to deal with dangerous products than fixing the problem. Companies such as General Motors (GM) and Firestone used secret settlements so that they could continue manufacturing fire-prone vehicles and explosive tires, respectively, for years. GM secretly settled 200 cases with victims harmed by vehicles manufactured with defective side-mounted gas tanks before the deadly defect was made public in the 1980s. It is impossible to know how many victims could have been spared had the public known about these dangers.
As described by Arthur Bryant, chairman of the nonprofit Public Justice, for corporations, “it’s cheaper to hide the truth from the public” through secret settlements than to disclose wrongdoing in the interest of public safety. For their part, victims may feel pressured to enter into such arrangements due to power imbalances and promises of higher settlement amounts for keeping quiet.
Secret settlements and court sealing are also used to protect the rich and powerful from accountability. For example, they helped hide widespread sexual abuse by Catholic priests for decades. The Roman Catholic Diocese of Albany, New York, paid a victim who had been repeatedly assaulted by a priest nearly $1 million as part of a secret settlement in 1997. Disgraced Hollywood producer Harvey Weinstein entered into at least eight secret settlements with women he harassed or assaulted, which allowed him to continue preying on victims.
As noted by retired Judge H. Lee Sarokin, who previously served on the U.S. Court of Appeals for the 3rd Circuit, “Secret settlements may protect the innocent, but I suspect they serve much more often to protect the guilty.”
Action is required by lawmakers to do away with abusive secret settlements and aggressive record sealing once and for all. Through secret settlements and record sealing, victims of abuse and wrongdoing are silenced, while the public is left none the wiser about the existence of dangerous products and predators that threaten public safety. The lack of public records regarding prior settlements can also prevent future victims from bringing successful lawsuits against repeat offenders. Corporations should be prohibited from entering into secret settlements with employees and consumers, while federal courts should be barred from sealing records in cases affecting public safety, which should be read broadly. Such prohibitions should be extended to cases between private individuals implicating public safety.
Variations of these laws—called “open records” or “sunshine-in-litigation laws”—have already been passed in states. For example, Florida’s sunshine-in-litigation law, adopted in 1990, prohibits secret settlements and record sealing in cases “concerning a public hazard,” which is afforded generous interpretation to include anything posing a “tangible danger to public health and safety.”
As an alternative, some commentators recommend relying on semi-confidential settlements, where either the settlement amount or the defendant’s wrongdoing is disclosed, but not both. Although this arrangement may be preferable to the status quo, it does not fully address the problem. For instance, if only settlement amounts are revealed, the public remains in the dark about the harms caused or dangers posed by the defendant. On the other hand, keeping the settlement amount secret poses its own issues, since settlement disclosures provide the public with clues about the egregiousness of the defendants’ actions. Both pieces of information are therefore vital for protecting the public interest.
Restoring and expanding private attorneys general authorities to enforce federal law
An important way to empower people to bring legal action against exploitative entities is to restore and strengthen private attorneys general (PAGs) at the federal level. PAGs allow private citizens to bring causes of action on behalf of the public for violations of federal law and are particularly useful in instances where government enforcement is inadequate or where government officials are the ones violating the law.
The Supreme Court articulated the importance of private rights of actions in 1969 in the context of Section 5 of the Voting Rights Act, which allowed private citizens to sue for voting rights violations:
“The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General … The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government.”
PAGs have been codified in several federal statutes, including the 1964 Civil Rights Act, the Clean Water Act, the Racketeer Influenced and Corrupt Organizations Act, and the Fair Labor Standards Act, among others. Under these laws, private citizens may bring lawsuits in the public interest for noncompliance of federal laws and regulations affecting civil rights, public health, corruption, and wage theft, respectively.
PAGs differ from class action lawsuits in three ways. First, PthAG cases are brought by individual private citizens rather than classes of people, which means that they are not subject to class certification requirements. Second, the types of cases PAGs can bring are more limited than class action suits since their authority derives from specific legislative provisions. Finally, the purpose of PAGs is to bring cases that benefit society as a whole. While class actions often have positive societal impacts, their purpose is to provide damages or injunctive relief for a specific group.
That said, PAGs and class actions both aim to obtain remedies for large numbers of people and to offer powerful incentives for corporations and governments to make institutional changes. PAGs that succeed on their claims have generally been allowed to collect attorney’s fees from the opposing party, as required by the Civil Rights Attorney’s Fees Award Act of 1976. The purpose of the 1976 act was to incentivize private citizens to bring cases without taking on significant financial risk.
Traditionally, PAGs had support from both conservatives and progressives because they shrink the federal government’s enforcement arm and provide plaintiffs with an effective avenue for pursuing civil rights claims. Over the past two decades, however, PAGs’ ability to bring cases on the public’s behalf has been severely curtailed by the Supreme Court.
For instance, in Alexander v. Sandoval in 2001, the Supreme Court barred lawsuits from being brought by private citizens to enforce disparate impact regulations under Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination by federally funded programs. Also in 2001, in Buckhannon Board & Care Home v. West Virginia Department of Health and Human Resources, the Supreme Court restricted PAGs from collecting legal fees in certain circumstances. The court went against long-standing precedent that entitled private actors to collect legal fees if the entity charged with wrongdoing voluntarily altered its behavior because of the lawsuit. Under Buckhannon Board, if the offending party remedies its behavior after being sued, but before a court order is entered, the prevailing plaintiff collects nothing in attorney’s fees. Not only does this violate the Civil Rights Attorney’s Fees Award Act’s intent, it leaves private citizens with little incentive to bring suits to enforce important federal law. Research shows that nonprofits, particularly those focused on systemic social change, have been negatively impacted by Buckhannon; some even report that they are less likely to take on cases because of the inability to collect fees. The Supreme Court has also limited PAGs’ ability to seek civil damages as opposed to injunctive relief.
Private attorneys general have historically provided citizens with a powerful and effective means of protecting public welfare. By curtailing the power of PAGs, the Supreme Court has cut off access to justice in a vital way. Congress can remedy this through legislation clarifying the authority of PAGs and the kinds of relief they are entitled to seek, while restoring financial incentives for bringing private actions in the public interest.
More broadly, private rights of action should be expanded to include more federal statutes implicating important civil and economic rights. One area in which PAGs can be particularly effective is consumer and employment cases. In 2004, California adopted a Private Attorneys General Act (PAGA) that provides employees throughout the state with private rights of action against employers violating state labor laws. Under California’s law, financial penalties are split 75-25, respectively, between the state’s Labor and Workforce Development Agency and the affected employees. Private citizens who succeed in their case are entitled to attorney and other court fees. Importantly, the California Supreme Court ruled in 2014 that the right to bring PAGA representative claims cannot be waived by forced arbitration agreements as a condition of employment. The issue continues to be litigated in courts, but this development in California law is significant as it provides aggrieved employees otherwise subject to forced arbitration a fail-safe for holding employers accountable.
Restoring simpler pleading standards
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal—sometimes collectively referred to as “Twiqbal”—the Supreme Court established stricter pleading standards, increasing the likelihood that plaintiffs’ claims against corporate bad actors will be dismissed. In 2007, in Twombly, the Supreme Court upheld the dismissal of a claim for antitrust violations, holding that the plaintiff failed to plead enough facts to demonstrate that the defendants plausibly violated the Sherman Antitrust Act. Before Twombly, the Federal Rules of Civil Procedure and federal precedent only required plaintiffs to put forth enough information in initial pleadings to show it was possible that the defendant violated the law. Rather than showing it is possible that they will succeed—assuming all the alleged facts are true—plaintiffs must now show that they are likely to win on the merits. Two years later, in Ashcroft v. Iqbal, the Supreme Court articulated the applicability of Twombly’s heightened pleading standard to all civil cases.
The burden has always been on plaintiffs to demonstrate that their claims are not frivolous, but Twiqbal heightened that burden to a detrimental degree. Plaintiffs suing for discrimination or violations of civil rights are disproportionately affected by Twiqbal’s plausibility standard because clear evidence is difficult to establish during the initial pleading phase and defendants are unlikely to openly admit to wrongdoing. Plaintiffs suing for discrimination often rely on the discovery process, through which they gain access to documentary evidence such as internal emails and memos proving discriminatory intent or patterns of discrimination. In 2011, a judge on the U.S. Court of Appeals for the 7th Circuit articulated Twiqbal’s impact on civil rights litigation in a dissent, using Brown v. Board of Education as an example. He looked to the Brown plaintiff’s very simple complaint, writing:
“Under the standards of Iqbal, however, it would be easy to argue that the plaintiffs in Brown failed to state a plausible claim for relief that could survive dismissal. The Court’s shift to ‘plausibility’ pleading, and the assignment of interpretation of that standard to the subjective common-sense of individual judges, has markedly increased the danger of throwing out the proverbial baby with the bathwater.”
Plaintiffs with legitimate claims must have a fair shot to make their case before a court. Practically speaking, Twiqbal requires plaintiffs to litigate their claims before their case even begins. It is perhaps unsurprising then that dismissal rates for lawsuits filed by individuals increased by more than 15 percent in the aftermath of Twiqbal. The uptick in case dismissal rates is not the result of more frivolous cases being filed. Instead, it is the obvious consequence of pleadings standards that are too high. Employment discrimination and civil rights cases have been particularly burdened by heightened Twiqbal standards.
According to law professor Alexander A. Reinert, who has studied Twiqbal’s impact on case dismissal rates, “For civil rights cases, no other independent variable correlates more strongly than plausibility pleading with an increase in the likelihood of a grant of a motion to dismiss.” Whereas individual lawsuits have been dismissed more regularly after Twiqbal, lawsuits brought by corporations—which have access to extensive legal resources—have been left largely unaffected.
Although there is no guarantee plaintiffs’ claims will succeed, complaints should not be summarily dismissed for failing to meet arbitrary pleading standards. The simple pleading standards stipulated in the Federal Rules of Civil Procedure, requiring a “short and plain statement of the claim” should be reinstated.
There are significant structural problems with the federal judiciary that necessitate robust structural reform. As it currently stands, the federal judiciary is out of touch with the broader populace, serving special interests and powerful corporations at the expense of everyday Americans. This is by design, due in large part to concerted efforts by conservatives to manipulate the courts for conservative ends. This report lays out several options for addressing the judiciary’s many problems. It is critical to begin having conversations now about how to effectively address structural issues with the judiciary.
An independent judiciary is vital to a functioning democracy. The courts provide an important means for individuals to fully realize their rights, particularly in the face of opposition from powerful and well-connected actors. While the current judiciary has too often failed to meet this standard, the independence of the judiciary can be restored if lawmakers are willing to make necessary and significant structural changes, including those discussed in this report. Through careful attention to the structures of the U.S. legal system, policymakers can ensure that future generations are bound by legal determinations made by a just and fair-minded judiciary whose decisions are based in law rather than ideological preferences.
We Don’t Need to Reform the Supreme Court
President Joe Biden recently announced the establishment of a high-level commission to study reform of the federal judiciary, including the Supreme Court.
Count me a skeptic. Of course, the law permits it. But that doesn’t make it a good idea.
The most obvious problem with the push to pack the federal courts is that the Democrats have conceded that the reform is meant to be a partisan reaction to the Obama-era Merrick Garland episode, the feeling among Democrats that the Republicans have exploited their political power to overwhelm the courts with their appointments, and the intensity of the Democrats’ opposition to the Kavanaugh appointment. That makes this the very kind of partisan manipulation of the judiciary that it claims to be remedying. Politicization of the judiciary in the name of correcting the politicization of the judiciary strikes me as a bad policy foundation. Worse, it seems to commit the Democratic Party to the same “winner takes all” attitude to life inside the Beltway that was so perilously characteristic of Trumpism.
Counting the Court or Courting the Count
I have another, more fundamental, objection to these plans. The reformers argue that they are responding to the increasing politicization of the judiciary. But that conclusion largely depends on quantitative research that makes claims about the Court’s conduct, and the political leanings of the justices, almost entirely by counting the justices’ votes and coding them for the supposed partisan polarity of issues the Court decides. This approach to thinking about and studying the Court is part of a larger trend in legal research involving the ascendance of social science methods borrowed from political science. The approach has found popular voice in reporting at the SCOTUS Blog and the New York Times. But it is becoming a staple of academic legal scholarship as well. Quantitative studies tell us something, perhaps even something about the politicization of the judiciary. But they also crudely oversimplify the Court’s work, reducing it to a set of binary inputs derived from justices’ votes: yes-no; conservative-liberal.
Isn’t the Supreme Court’s jurisprudence something more than that? Even the use of the reductive term “vote” to describe the justices’ work is problematic. What’s the point of all those long, sometimes long-winded, “opinions” if it only boils down to vote counting? Significantly, the justices themselves studiously resist efforts to assign them and their work to partisan columns on a scorecard.
It’s beyond dispute that the political tilt of the judiciary frames legal outcomes. And it’s true that legal outcomes matter in ways that affect Americans’ every-day lives. Access to health care or participation in one’s cherished religious services or the right to enter the country or the autonomy to marry who one loves, among so many other central issues of life, hang on the justices’ votes. The cumulation of those outcomes, produced by a judiciary now leaning rightward, have the potential to change America overtime and in an enduring way. The partisan character of that effect, however, can’t be the basis for an intrusive overhaul of the apparatus of justice. It is, after all, the natural consequence of shifting political winds and the role the Constitution assigns to the political branches in structuring and assembling the judiciary. The Framers understood how important it would be to anchor the independent and powerful judiciary in democratic and accountable processes. With rising resentment for remote and elite institutions, the need for that popular anchor is not less resonant today. It’s the wisdom behind Mr. Dooley’s conclusion that “the Supreme Court follows the election returns!” Of course, the Democrats understand this. The same levers of judicial politics made the progressive achievements of the New Deal Court and later the Warren Court possible.
The quantitative research informing the reform movement tells us very little about the quality of the Court’s recent jurisprudence. Counting votes doesn’t engage closely with the reasoning, analysis, and methods deployed by the justices. But judicial reasoning is exactly what makes a judge’s “vote” something altogether different to a legislator’s vote. The latter can and should be informed by politics and power, and beyond that need not be justified according to any other kind of logic. Neglecting the very essence of judicial decision-making as it does, quantitative, results-centric critiques of the Court are not a claim that the Court’s work has become shoddy. That would have been a more compelling summons to sweeping judicial reform? To ascertain whether there has been a dramatic decline in the integrity and soundness of judicial reasoning – whether it produces right-leaning or left-leaning results – requires a more traditional engagement with the Court’s cases. That approach involves close readings of the opinions and critical interpretation of the reasoning deployed by the justices. It is a sleeves-rolled-up, painstaking exegesis of the Court’s richly nuanced opinions, and it is bound to produce a different perspective and understanding of the Court’s decisions than that which can be achieved by merely studying vote tallies.
Let me offer an example. I’m doing a big study of the Court’s recent jurisprudence around the doctrine of stare decisis, the longstanding principle that courts are bound by previous decisions of higher-ranking courts on similar matters. A simple conservative-liberal assessment of the votes in the relevant cases permits the superficial conclusion that the Court’s liberal wing favors adherence to precedent while the conservative wing is more willing to depart from the doctrine of stare decisis. So far, so good. But a close reading of the many opinions in that line of cases reveals a surprising convergence around the notion of law’s determinacy among justices as politically divergent as Justices Clarence Thomas and Elena Kagan. Far more than their votes in those cases, an understanding of the justices’ vision of the law that emerges from what they actually wrote in support of their votes is an insight of greater long-term significance. It also shows that there are curious departures from the standard left-right politicization critique of the Court. Beneath the votes, and at the level of the justices’ reasoning, there were nuanced strains of jurisprudential agreement that remain un-excavated if we operate only at the level of vote counting. On top of it all, the opinions turned out to be admirably sophisticated. They involved a wide variety of interpretive approaches, clear and coherent reasoning, and lively rhetoric. Whatever the outcome of the votes on the question of the fate of stare decisis, it is impossible to say that the quality of the Court’s engagement with the issue is somehow lacking.
In fact, even as quantified studies show an increasing rightward tilt on the Court, there is no suggestion that the jurisprudential quality of the Court’s decision-making has collapsed in a manner that requires urgent, dramatic structural reform. Some excellent and well-qualified legal minds have found their way to the bench in the last years, under administrations led by both parties. And the Court always had some weak links, even the revolutionary Courts led by Chief Justice John Marshall and Chief Justice Earl Warren. The debates at the Court over the meaning of law, foundational legal principles, and judicial method (as a proxy for discussion about judicial power itself) remain rich, informed, and intense.
Protecting Against a Judicial Capture?
The Democrats largely admit that their interest in reform is driven by, as the progressive think tank Take Back the Court puts it, the partisan interest in “re-balancing the Court after its 2016 theft.” But the reformers also seem convinced that the judiciary is at risk of being captured in the sense that it is now dangerously loyalist to the Republican Party or former President Donald Trump. The non-partisan advocacy group Fix the Court, for example, worries that the Court is “not only highly political, it also is polarized along partisan lines.” If these concerns were justified, then reform would be necessary because we would see that the judiciary is set – not on following the law – but on ruling only to benefit Trump personally or the cause of his residual political movement.
It’s an admittedly small sample, but we didn’t see anything like that in the handful of courts that were called upon to review Trump’s challenges to the 2020 election. Instead, up and down the judicial hierarchy and involving judges endorsed or appointed by both parties – including Trump himself – we saw judges doing their work admirably, applying the law in an objective and temperate manner. Chief Justice John Roberts was right when, in reaction to Trump’s twitter-broadside against an “Obama judge,” the Chief Justice insisted that
we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
The fact that Trump managed to make a significant haul of appointments in his single four-year term is not the same thing as demonstrating that there has been a Trumpist capture of the judiciary. The numbers are well known: 234 confirmed Article III judicial appointments, including three Supreme Court justices and 54 Court of Appeals judges. In his eight years in office, President Barack Obama only managed 329 confirmed Article III judicial appointments, including two Supreme Court justices and 55 Court of Appeals judges. There should be no doubt that this will be one of Trump’s most enduring legacies. If I had to to characterize the policy and political leanings of such a large number of judges, I would point to the respectable core of the Federalist Society, which espouses constitutional conservatism, a pro-business and small-government agenda, and sends signals on social issues that win support from Evangelical Christians and libertarians. Those are Republican values and the Democrats understandably oppose them. But there are legitimate and reasonable interpretative approaches to the law that might give those policy positions priority in the work of a judge. Results favoring Republican policies are not the same thing as blind, extra-judicial fealty to a political party or personality.
One glaring concern that emerges from Trump’s appointments is the troubling lack of diversity among the judges and justices he named to the federal courts. By incomprehensible margins, Trump’s appointees were white men. But correcting the broader problem of a lack of diversity in the judiciary – clearly made worse by Trump – is not at the forefront of the reform movement. The central issue is the judiciary’s supposed slide into partisan politics and the Democrats’ agenda makes added diversity an implied instrument to correcting that problem.
The Good Reform
I do have a worry that would motivate me to support judicial reform. I fear the Court’s loss of institutional capital and good-standing among Americans. I have these concerns less in relation to any specific developments at the Court. Instead, I’m concerned that the Court will suffer the loss of its authority along with seemingly all other public and political institutions in the American system. With that in mind, it might be wise to take some formal, structural steps to reinforce the institution and to make it less likely to succumb to hyper-partisanship and conspiracy-addled outrage. That doesn’t appear to be the spirit animating the reform movement. Rather than giving in to the politicization of the judiciary as the reform agenda does, the goal should be to insulate the Court from the most incendiary political issues, to fend off and discredit claims that it is just another political actor – and an unelected, elitist, unaccountable political actor at that.
The question is: Are the current checks in place no longer adequate to preserve the Court’s standing?
Its best defense is its own circumspection and modesty. The certiorari power allows the Court to avoid hearing cases. The political question doctrine allows it to avoid ruling even after it has agreed to hear a case. And the justices’ institutional sensibilities also are important. It is widely understood that this is a driving concern for Chief Justice Roberts, who has surprised observers and advocates by joining the Court’s liberal-wing in a few sensational cases where doing so was seen to be necessary to preserve the Court’s integrity.
Are these “passive virtues” still adequate, especially in light of the growing institutional skepticism and resentment in American politics? If not, then I might like to see a modest change, borrowed from the practice of the German Federal Constitutional Court. The eight-justice German Court cannot overturn the will of the democratically accountable branches without at least a slight 5-3 super majority. A 4-4 tie among the eight justices leaves the challenged policy in place. It might do the Supreme Court a great deal of good if it was blocked from exercising the rarefied power of judicial review without a slight 6-3 “super majority.” Oliver Lepsius, the brilliant University of Münster comparative law scholar, first suggested this to me. In the current context, this small change has the merit of avoiding unseemly, partisan court packing that aims merely to even-out the political balance at the Court. It also would allow both parties to recommit to the primacy of deliberative and democratic processes, and not judicial power, as the foundation for policy-making.
The proposed reforms under discussion also might contribute to shoring up the judiciary’s public standing. But I fear they risk looking more like bald Democratic attempts to neutralize the present Republic-leaning advantage in judicial appointments. As former Justice Ruth Bader Ginsburg explained not long before her death,
If anything would make the court look partisan it would be that — one side saying, “When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”
Old But Not Forgotten
I am least persuaded by proposed term limits. In a culture of judicial politics already steeped in legal realism, it is dangerous to ignore the benefit we gain from the stability resulting from lifetime appointments. If it’s really true that the justices just follow their political instincts and policy preferences, which seems to be a base-level assumption of the reformers, then increasing the frequency of turnover on the Court also risks increased instability in the Court’s jurisprudence.
Stability is a fundamental legal value and a core component of justice. This is especially true in a common law system like America’s, where constancy among the Court’s justices also reinforces respect for precedent and reliance on the law. Fix the Court nevertheless urges the abandonment of life-tenure to be replaced by an 18-year term limit. It’s possible that we would maintain the requisite stability on the Court with this change. But it promises to introduce a greater degree of tumult into the Court’s work and jurisprudence. Under the current life-tenure regime, the same nine justices sat together from 1994 to 2005, a remarkable decade during which the justices’ views on controversial issues were well known. This consistency permitted litigants and society to frame their expectations and reliance on the controlling rules. Even if there was some partisan drift and realignment among the justices over their long careers on the Court, the presence of a stable cohort meant radical reversals were rare. This stability also gave the Court’s new precedents the chance to put down roots rather than face immediate rethinking by a routinely reconstituted bench. With the rash of new appointments to the Court – five in the last decade – we’ve seen as more precedents reversed in the last three years than in the stable decade around the turn of the century. That Court’s stability was achieved with four new appointments in the early 1990s. An 18-year term limit would have cut that 10-year run in half and involved twice as many appointments.
I also doubt the suggestion that an 18-year term limit will spare us the “political circus” that accompanies today’s Supreme Court appointments. The political stakes of those appointments clearly are elevated by life-tenure. But it is the Court’s power in our political system that makes Court appointments such a combustible event. Marginally shorter terms won’t change that fact.
There’s also a nasty bit of ageism percolating in the term limits proposal. Fix the Court worries that many justices now serve “past their intellectual prime.” But we just had the oldest-ever presidential ballot and elected the oldest-ever president. If we can live with a septuagenarian president, then there is no reason to categorically exclude older jurists from service on the bench. All of us can name several Supreme Court justices who served vigorously and admirably right up to their deaths in office. And all of us can name several Supreme Court justices whose relative youth did not enhance the integrity of their legal reasoning.
Considering the fact that President Franklin Delano Roosevelt’s now-infamous effort at packing the Court involved a mix of age-sensitive appointments and an increase in the number of justices, I’m surprised by the traction those kinds of proposals are getting.
Prioritizing Supreme Court Reform
Biden’s reform commission suffers from the appearance of revanchist politics. But, as its mandate and membership still aren’t settled, it’s too soon to say much more.
Still, even if Senate Majority Leader Chuck Schumer calls Supreme Court reform “the big one,” it’s more relevant to ask whether this agenda urgently demands the administration’s attention. With luck, Biden can tackle one or two big structural issues in the honeymoon prior to the 2022 mid-term elections. I don’t see how partisan court packing can be one of his top priorities. In any case, it’s not clear to me that judicial reform would attract secure support from the Democratic Caucus. More profoundly, considering Biden’s commitment to the cause of social and racial justice, it might be better to have launched a commission to explore a second round of criminal justice reform for which there has been immense political support in the public and functional bipartisan consensus for new policy. No one can doubt that the need on that point remains enormous, especially as regards racial injustice in America’s judicial processes.
Of course, another way for the Biden administration and Schumer to respond to the Republicans’ judicial advantage would be to invest the same political capital in an energetic appointments effort as Trump and Mitch McConnel did. Instead of focusing on widening the goals or adding minutes to the game-clock, the Democrats might accept the rules as they are, seize their present political advantage, and work to ensure some partisan balance in the federal judiciary by single-mindedly pushing through their judicial appointments. There are reports that Biden’s team is doing just that.
But beating the Republicans at this game will require the Democrats to make judicial appointments a more central feature of their national political strategy. The Republicans have clearly succeeded in making the judiciary a part of their platform and political appeal in ways that the Democrats have not. It is one of the factors that keeps Evangelical Christians so firmly in the Republican camp, even as they may have doubted Trump’s Christian scruples. The Republicans have a concerted and coordinated program fueled by the so-called “moral majority” reaction to the Warren Court’s progressive jurisprudence and then radicalized by the Democrats’ success in defeating President Ronald Reagan’s nomination of Robert Bork to the Supreme Court.
If the Democrats’ efforts to reform the Supreme Court look like an attempt to restore partisan balance to the judiciary, it’s because that’s what they are. That’s an unfortunate and cynical concession to the politicization of the judiciary and to a brand of legal realism that is informed by a superficial approach to assessing the work of the Supreme Court. It is little more than an attempt to stuff the judicial ballot to the advantage of the Democrats.
To be sure, the reform agenda is not being driven by concern for a troubling decline in the quality of American jurisprudence. And so far there isn’t evidence of a Trumpist capture of the judiciary that is now filled with loyalists and hacks. But beyond all of this, maybe the most troubling part of the reform movement is that it is a concession by the Democrats that they can’t win the contest for the heart of the American judiciary without changing the rules, and changing the judiciary along the way.
thehill.com, “Trump: Supreme Court should be ‘ashamed’ for not reversing Biden win,” By Jonathan Easley; usatoday.com, “Donald Trump stood no chance in front of a conservative Supreme Court. Here’s why,” By Richard Wolf; msn.com, “A Supreme Court showdown over Trump’s legacy ends with a whimper,” By Ian Millhiser; nypost.com, “Biden assembling commission to study Supreme Court ‘reform’: report,” By Bruce Golding; brookings.edu, “Should we restructure the Supreme Court?” By Russell Wheeler; justsecurity.org, “We Don’t Need to Reform the Supreme Court,” By Russell Miller; americanprogress.org, “Structural Reforms to the Federal Judiciary: Restoring Independence and Fairness to the Courts,” By Danielle Root and Sam Berger; pewresearch.org, “Before Ginsburg’s death, a majority of Americans viewed the Supreme Court as ‘middle of the road’,” By Hannah Hartig; qz.com, “Three ways to make the Supreme Court less partisan,” By Annalisa Merelli; heritage.org, “The Way to Stop Politicizing the Supreme Court,” By Elizabeth Slattery; theconversation.com, “Where the politicisation of the US Supreme Court could lead,” By Emma Long;” theguardian.com, “The US supreme court has become a threat to democracy. Here’s how we fix it: The court has been weaponized to skew political power and insulate extreme conservative coalitions from accountability,” By Sabeel Rahman;
Trump: Supreme Court should be ‘ashamed’ for not reversing Biden win
Former President Trump blasted the Supreme Court for refusing to hear his campaign’s election challenges, saying on Tuesday that the high court lacked the “courage” it needed to overturn the 2020 election results.
In an interview with Fox News’s Maria Bartiromo, Trump repeated his claims that the election had been stolen from him because states moved to allow expanded access to mail balloting due to the coronavirus pandemic.
Trump lost scores of court challenges, and his own Justice Department disputed the idea that there was widespread fraud in the election. However, the former president on Tuesday unloaded on the courts for refusing to throw out Democratic votes in states that changed their election laws to expand access to voting.
“The Democrats used COVID to do things they can’t believe they got away with, that they didn’t get their legislatures to approve, and our courts and the Supreme Court didn’t have the courage to overturn elections that should have been overturned because you’re talking about decisive amounts, hundreds of thousands and even millions of votes,” Trump said.
The former president singled out the Supreme Court, which refused to hear several of Trump’s challenges because his campaign didn’t have standing.
Trump appointed three Supreme Court justices in his four years in office, giving the high court a 6-3 balance in favor of conservatives.
“The Supreme Court didn’t rule on the facts. It ruled on standing,” Trump said. “The Supreme Court should be ashamed of itself.”
The former president also fumed at Senate Minority Leader Mitch McConnell (R-Ky.), blaming him for the party’s Senate runoff losses in Georgia, which cost the GOP the majority in the upper chamber.
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Many Republicans have blamed Trump’s fixation on the idea that the election was stolen from him for the GOP’s Senate losses in the state. Trump’s claims divided the party and may have convinced some conservatives to stay home out of the belief that their votes wouldn’t be counted anyway.
But Trump said that McConnell’s refusal to back $2,000 checks for all Americans as part of a COVID-19 relief bill is what cost Republicans.
“That was a disaster,” Trump said. “Mitch McConnell made a tremendous mistake. He lost those two seats.”
A Supreme Court showdown over Trump’s legacy ends with a whimper
On 3/09/2021, all of the parties to Department of Homeland Security v. New York, a lawsuit challenging a Trump-era policy targeting low-income immigrants, asked the Supreme Court to dismiss that case. The Court swiftly granted that request, removing from consideration one of the most contentious cases that the justices planned to hear this year.© Win McNamee/Getty Images Supreme Court Justice Neil Gorsuch (left) talks with Chief Justice John Roberts on the steps of the Supreme Court in 2017.
Then, on Thursday, the Court announced that it would remove two cases from its calendar that challenged Trump era policies that would stripped Medicaid from many people if they do not find jobs. Lower courts have been quite skeptical of these requirements, and the Biden administration asked the Court to remove these cases. So the most likely outcome of the Court’s decision on Thursday is that the work requirements will disappear for at least as long as Biden is president.
New York is the third time in just over a month that a major immigration case went up in smoke. In early February, the Court granted requests to remove two cases — Mayorkas v. Innovation Law Lab and Biden v. Sierra Club — from its argument calendar.
The Innovation Law Lab case challenged Trump’s “remain in Mexico” policy, which forced tens of thousands of migrants who seek asylum in the United States to wait in Mexico while their cases were being processed; the Biden administration is unwinding that policy.
Sierra Club involved a challenge to Trump’s attempt to divert billions of dollars, appropriated for the military, to building a wall along the Mexican border. Biden signed a proclamation on his first day in office stating that “no more American taxpayer dollars [shall] be diverted to construct a border wall.”
The New York case, meanwhile, challenged the Trump administration’s “public charge” rule, which sought to prevent immigrants from entering the United States, extending their visa, or obtaining a green card if immigration officials determined a particular immigrant was likely to use public assistance programs such as food stamps or Medicaid.
The Court’s decision to dismiss the New York case is not particularly surprising — it would be extraordinary for any court to hear a case that all parties agree should be dismissed — but it is likely to be an important victory for immigrants. Although several lower courts ruled against the public charge rule, the Supreme Court temporarily reinstated that rule in early 2020, voting 5-4 along party lines. And that was before the late Justice Ruth Bader Ginsburg’s replacement with Justice Amy Coney Barrett moved the Court further to the right.
Had the Court issued a final decision upholding the public charge rule, future presidents could have relied on that decision to reinstate the rule, even if the Biden administration abandons it.
The Supreme Court has taken up far fewer cases than it normally does
The anti-climatic resolutions of the New York, Innovation Law Labs, and Sierra Club cases are a reminder that elections have consequences: It is likely that the Supreme Court would have upheld all three policies if Trump were still in office. But the Court also planned to hear surprisingly few cases during its current term, even before the Biden administration asked it to start removing cases.
Each year, the Supreme Court begins a new term in October, and it typically finishes that term in the following June. Over the intervening months, the Court normally holds seven “sittings” — five- or six-day blocks where the justices will ordinarily hear two cases a day. Thus, in a regular sitting, the justices will hear 10-12 cases.
This term, however, the Court’s heard far fewer cases than usual. It heard only eight cases in its November sitting, five in its January sitting, and six in its February sitting. The justices plan to hear only seven cases in the March sitting.
There are a number of possible explanations for this unusually slow workload. The pandemic forced the justices to close their building to the public and hold oral arguments remotely, and the pandemic may have also slowed down lower courts, meaning that there are fewer decisions to appeal to the justices.
The Court’s membership has also changed significantly in recent years — President Trump appointed three justices during his four-year term — so the justices may want to spend some time getting comfortable with each other (and learning how their new colleagues are likely to vote in important cases) before filling their calendar up with new arguments.
And the justices may also feel like they are politically vulnerable, given that Congress and the White House are both controlled by Democrats who are quite aware of how the Court’s current 6-3 Republican majority came into being.
Shortly after Justice Antonin Scalia died in February of 2016, Senate Republicans refused to hold a confirmation hearing for President Obama’s Supreme Court nominee Merrick Garland — at the time, they claimed that the Senate should not confirm new justices during a presidential election year. But then, when Ginsburg died in September of 2020, Republicans abandoned this rule. Justice Barrett was confirmed just eight days before the 2020 election.
That led many Democrats to call for an aggressive response, such as adding additional seats to the nine-justice Court to dilute the votes of Trump’s justices. Senate Majority Leader Chuck Schumer has said that “nothing is off the table” when it comes to the Supreme Court.
So it’s also possible that the justices may be laying low to discourage Democrats from expanding the Court.
That doesn’t mean that this term is a total sleeper. The justices still heard a case seeking to repeal the Affordable Care Act, a second case that could give religious conservatives a broad new right to discriminate against LGBTQ people, and a third case that could gut what remains of the Voting Rights Act. The Court is likely to hand down its decisions in those cases in June.
Before Ginsburg’s death, a majority of Americans viewed the Supreme Court as ‘middle of the road’
Before Justice Ruth Bader Ginsburg’s death on Sept. 18, majorities of Americans said the Supreme Court has the right amount of power and that the court is “middle of the road” ideologically.
Nearly two-thirds of Americans (65%) said the Supreme Court has the right amount of power. Similar shares of Republicans and Republican-leaning independents (66%) and Democrats and Democratic leaners (64%) said the court has the right amount of power, according to a national Pew Research Center survey conducted July 27-Aug. 2 among 11,001 adults.
A smaller majority (56%) viewed the Supreme Court as middle of the road rather than liberal or conservative. Republicans (66%) were more likely than Democrats (47%) to say the court is middle of the road. Nearly half of Democrats (47%) – including 58% of liberal Democrats – saw the court as conservative, compared with just 12% of Republicans.
Partisans’ views of the Supreme Court’s ideology have changed since 2016. The share of Republicans who view the court as middle of the road has increased while the share who say it is liberal has fallen. Over the same period, Democrats have become more likely to say the court is conservative. Since 2016, President Donald Trump has appointed two justices to the court.How we did this
While opinions of the court’s ideological leanings were divided along partisan lines, comparable shares of registered voters who said they supported Joe Biden (66%) and Donald Trump (61%) in the presidential election viewed Supreme Court appointments as “very important” to their voting decisions.
Republicans and Democrats also had sizable differences in opinions of how the Supreme Court should base its rulings. Among the public overall, a majority of Americans said the court should base its rulings on its understanding of what the Constitution means in current times (55%); fewer said it should base its rulings on what the Constitution “meant as originally written” (43%).
As had been the case for more than a decade, Democrats were considerably more likely than Republicans to say the Supreme Court should base its rulings on what the Constitution means in current times (76% vs. 32%, respectively).
There were sizable differences within each partisan coalition on this question: 50% of moderate or liberal Republicans said the high court should base rulings on the Constitution in context of current times, while fewer than half as many conservative Republicans said the same (21%). Among Democrats, liberals (88%) were more likely than conservatives and moderates to say the court should base rulings more on current context.
White adults were more likely than Black and Hispanic adults to say the Supreme Court should base its rulings on its understanding of what the Constitution means as originally written; about half of White adults said this (48%) compared with smaller shares of Black (33%) and Hispanic (35%) adults.
Younger adults – as well as those with higher levels of education – were more likely to say the court should base its rulings on what the Constitution means in current times. About two-thirds of those younger than 50 said this, as well as a similar share of those with a college degree or more.
The Supreme Court was viewed favorably by a 70% majority of Americans in the August survey. The public’s views of the court have been positive in recent years – recovering from a low point in 2015 that followed controversial rulings on the Affordable Care Act and same-sex marriage.
Since August 2019, the share of Republicans with a favorable impression of the court has declined 10 percentage points (from 85% to 75%), while Democrats’ views have become more positive, increasing from 57% to 67%.
Long-term trends in opinions about the U.S. Supreme Court
Trends and mode changes
In views of the Supreme Court among the public overall, majorities continued to hold more favorable than unfavorable views. When asked in an online survey using the Center’s American Trends Panel, 70% of Americans expressed a favorable opinion of the Supreme Court, while 29% had an unfavorable view. In a contemporaneous phone survey, 62% had a favorable opinion of the court, while 32% viewed it unfavorably. The share offering no opinion was higher on the phone survey (6%) than on the online survey (2%). In both survey modes, Republicans were more likely than Democrats to express favorable opinions of the court.
The long-term trend on favorability of the Supreme Court (from phone surveys) shows that positive views of the court recovered since slipping to 48% in July 2015. Most of that change has come among Republicans. Just 33% of Republicans had a favorable view of the court in July 2015; that share more than doubled to 70% in the most recent phone survey.
In views of the Supreme Court’s ideology, the overall pattern of opinion was similar, though there were some differences in the point estimates between the online and telephone surveys: Far fewer adults today said the court was liberal than said this for much of the last decade. This includes declining shares of Republicans and Democrats who expressed this view.
As has been true for the last several years, more adults said the Supreme Court is “middle of the road” than conservative or liberal. Still, in both the phone and online surveys, larger shares said the Supreme Court was conservative than liberal.
Three ways to make the Supreme Court less partisan
It might be difficult to pinpoint exactly when it began, but the US Supreme Court has become too partisan.
The rancorous national conversation following the death Ruth Bader Ginsburg has done away with even the slightest appearance that the two main parties see the court as anything other than an extension of legislative and executive powers. Justices are now appointed with the open expectation they will help advance their political agenda.
Justices have had ideological leanings since the early days of the court, but the relatively recent alignment between Republican politics and conservative values and Democratic politics and progressive ones has turned the court into a political battlefield.
With the current structure of the court, the risk of having a majority with strong ideological—and hence political—leanings is real. And a risk it is: Behavioral research has shown groups whose compositions represents multiple perspectives do a better job of making decisions.
A commonly suggested solution is expanding the number of justices in order to rebalance the court’s composition. But while it might work in the short term, it doesn’t eliminate the mechanisms that generate the imbalance in the first place.
Another thought is introducing term limits. Rather than receiving lifetime appointments, justices would serve for a limited term (for instance, 18 years). Retiring justices would be replaced by the president serving at the time, and the timing of the appointment would not become a matter of political wrestling. Term limits could reduce, or perhaps, end the partisan struggle over when it is appropriate to fill a court vacancy.
While the term limit would have important benefits, it could be combined with other reforms. In a 2018 paper, David Orentlicher, a professor at the University of Nevada at Las Vegas’s law school, suggests three additional ways to modify the court’s structure and procedures to guarantee its ideological balance.
Ideologically balanced justices
A president’s nominees to the Supreme Court are now confirmed if a simple majority of senators vote in their favor. The party that holds the Senate majority can confirm a justice even if all members of the minority party are opposed. Requiring a supermajority—for instance, two-thirds of the Senate—would likely guarantee picks who seen as valid candidates even by the minority party. This, Orentlicher said, would likely weed out the potential nominees who adhere more strongly to a specific ideological leaning, in favor of centrist nominees more inclined to compromise. Until recently, the confirmation process wasn’t so different: A nomination could be subject to a filibuster, and therefore nominees needed 60 votes for approval. In 2017, the Republican majority changed the requirement to a simple majority.
This could be accomplished through a constitutional amendment, or simply another vote to change senate procedure. As the threshold for confirmation was lowered to a simple majority, it could be raised back to 60 votes, or more.
Ideologically balanced decisions
Currently the Supreme Court also decides its cases by simple majority. Thus, a majority of ideologically like-minded justices doesn’t need to take into account the opinions of the court members who hold different views. Requiring a supermajority to decide (for instance, seven-two) or even unanimous decisions, would strengthen the chances of compromise.
Orentlicher also said it might be worth considering both reforms together—justices elected by a supermajority who then decide through a supermajority—in order to further protect against partisanship (which might happen if the Senate was two-thirds of one party, or seven justices were of a specific ideological leaning).
This change could also be mandated by a constitutional amendment, but justices could also, more easily, impose a supermajority rule on themselves as part of their Supreme Court rules.
Ideologically balanced court
If the nation can’t get away from parties wanting to pick justices that favor their policies, then let both parties have an equal number of them. This is somewhat similar to what happens in New Jersey’s Supreme Court, where Democrats pick three judges, Republicans three, and the governor chooses the seventh whenever it’s up for nomination.
But in Orentlicher’s view, there isn’t a need of an odd number, either. After all, it wouldn’t be the first time the court has had an even number of justices. “I am not worried about gridlock,” he says. “In game theory, you learn that when people are in an ongoing relationship where they have to deal with each other, that leads to more cooperation.” He believes the judges’ sense of responsibility for their role, and their desire to have an impact on the law, would lead them to reach a decision.
Again, this could be accomplished through a constitutional amendment, but the Senate could also create a nominating commission comprising senators of both parties to recommend nominees. While the president would still be free to pick other nominees, the Senate could refuse to confirm them unless they are approved by the commission.
The Way to Stop Politicizing the Supreme Court
Standing in the shadow of the Supreme Court on March 4, Senate Minority Leader Chuck Schumer (D-N.Y.) delivered an ominous message to Justices Neil Gorsuch and Brett Kavanaugh:
“You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Earlier that day, the court had heard a case challenging Louisiana’s regulation of abortion doctors. Schumer was not-so-subtly hinting that there would be consequences unless the justices rule the way he wants.
Months earlier, a group of senators took aim at the Supreme Court. Writing in a “friend of the court” brief in a case challenging New York City’s gun regulations, Sen. Sheldon Whitehouse (D-R.I.) and four of his colleagues menacingly declared the court is “not well” and must “heal itself” or face restructuring. The path toward “healing” naturally would include ruling the way the senators want.
These threats are part of a broader attempt to politicize the Supreme Court. The senators mistake the justices for politicians in robes and confuse the justices’ rulings with policy preferences.
Just as Chief Justice John Roberts once remarked that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” the way to stop politicization of the Supreme Court is to stop politicizing the Supreme Court. We must respect the limits of the judicial power. We must stop asking the court to “update” laws, discover new rights and resolve disputes between the political branches that they can work out on their own.
And we must not let the confirmation of new judges devolve into a political sideshow, as we’ve seen in recent decades.
After all, the Supreme Court is not a political institution. The framers of our Constitution knew well that judges’ independence from politics would be essential for our system of government to work.
That is why federal judges enjoy life tenure—so they would not be tempted to rule based on what was likely to get them reelected or reappointed. And they may only exercise the judicial power to decide live “cases” or “controversies”—so judges would not act like members of a roving council of revision over our nation’s laws.
Some judges do mistake their limited role in our constitutional system, focusing on the outcome rather than the approach. Today, however, a majority of Supreme Court justices are committed to ruling based on the text and original meaning of the Constitution and laws, wherever that may lead.
Silver-bullet suggestions to “fix” the perception of a politicized court tend to miss the mark. One academic proposes that the justices should no longer sign their opinions and instead issue anonymous opinions. The court sometimes issues unsigned decisions, but it is an opinion’s contents—not its author—that leads to charges of politicization. Indeed, Bush v. Gore was an unsigned opinion, and “depoliticized” is not how many would describe it.
And what’s more, the justices’ writing styles are fairly discernible, so even casual court watchers can tell a Clarence Thomas opinion from one penned by Ruth Bader Ginsburg.
Another idea is to “pack the court” with additional justices. President Franklin Delano Roosevelt—the last to try this—failed spectacularly with his plan, although he did eventually “pack” the court the old-fashioned way (through attrition). Simply adding more justices would not change whether the court is politicized. And it could end up compounding the problem if the court packing crowd favors justices who would insert the court into matters that should be handled at the ballot box or by legislative bodies.
Others advocate for bringing cameras into the Supreme Court to livestream oral arguments. Oral argument is only a small part of each case. But livestreaming it would run the risk of further politicizing the court if the argument becomes an opportunity to grandstand or take sound bites out of context (indeed, the justices often play “devil’s advocate” with their questions).
These quick fixes would not change the perception of a politicized Supreme Court. The solution is to change the way people think about the court. It is only when we as a nation respect the limits of the court’s power that it will no longer be viewed as a politicized institution.
Where the politicization of the US Supreme Court could lead
Another bitter political battle over a US Supreme Court vacancy came to an end when Amy Coney Barrett was sworn in as the 115th justice on October 26 by President Donald Trump. The Senate vote on her appointment was predominantly along party lines, and was the first time in well over a century that a new justice has been appointed without any support from the minority party in the Senate.
Americans now wait to see what impact Barrett’s appointment will have on the range of constitutional and statutory issues that are due before the nation’s highest court – including abortion, healthcare, contraception, gun control and immigration.
But amid discussion about the wider consequence of her appointment, one question has been largely absent. What might this bruising political battle mean for the court as an institution?
The court’s legitimacy
As I have noted before, although the Supreme Court has tremendous power over the lives of ordinary Americans, this is only so because the other branches of government, and the American public, accept its institutional role.
The legitimacy of that role rests not on the ability to compel others to follow the rulings, nor on the ability to provide funding for those rulings, but on its ability to persuade others that its decisions are reasonable. As one of the US founders Alexander Hamilton wrote in The Federalist in 1788, the court has “no influence over either the sword or the purse … neither force nor will, but merely judgement.”
The justices must convince others to follow and enforce their rulings, even when those others disagree with the outcome. That requires legitimacy, and that legitimacy rests not just on the principle of the rule of law, but on the idea that there is some distance between interpreting the law and making political decisions.
But what happens when politicians involved in nominating justices portray the court as little more than another political branch to be “won” or “lost” by those holding elective office? For example, during the successful 2016 Republican campaign to deny Barack Obama the chance to appoint a justice to replace Antonin Scalia, then presidential hopeful Ted Cruz said: “We cannot afford to lose the supreme court for generations to come.”
More recently, Mitch McConnell, the Republican majority leader in the Senate and architect of the appointments of both Neil Gorsuch in 2016 and now Barrett, claimed: “The reason we were able to do what we did … is because we had the majority.” This implies that legitimacy now rests on the political implications of the court’s rulings.
Tracing public opinion
Three years later, having struck down key provisions of the Voting Rights Act and held that same-sex marriage was protected by the constitution, the court’s favourability rating had fallen to 43%. As polls by the Pew Research Center revealed, much of the overall drop in approval was driven by conservative Republicans who argued that the court was too liberal.
Fast forward to September 2020, before the death of the justice Ruth Bader Ginsburg was announced, and the court’s overall approval rating had shot up to near 70% according to Pew research. Although approval of the court increased among both Republicans and Democrats, the sharpest rise came from Republicans whose favourability rating had almost doubled in five years to 70%. At the same time, significantly more Republicans reported believing the court was “middle of the road” while an increasing number of Democrats viewed it as conservative.
Both Democrats and Republicans implicitly assume that they have a right to control the outcomes of the court – that they have a claim by virtue of the appointment process to get the “right” results in key cases. Setting aside the complex question of whether justices really make decisions based on their personal politics, a fact most justices have consistently disputed, such a claim is deeply problematic.
It opens the door for adherents of one party to argue that a particular ruling is illegitimate because it came from a court with members appointed under questionable circumstances influenced by politics which they disagree.
Assume, further down the line, that Democrats, having won control of the White House and Senate, enact some of the changes that have been mooted in the run up to the 2020 election: introducing term limits, increasing the number of justices – called “packing the court” – or changing the appointment rules.
Whether those changes are beneficial or not, they are likely to be seen as political retaliation, linking the court even closer to partisan battles. The Republicans might even argue that the decisions from a future court are illegitimate because it was shaped by their political opponents.
With politically divisive battles over each new appointment seemingly the new norm, and the rise of language which treats the court as part of the electoral spoils, it’s not too hard to imagine a point when decisions are only considered legitimate when they come from a court dominated by appointments from one party of the other.
Politicians of both parties should take note and beware: in treating the court as simply another political branch of government they may undermine entirely its legitimacy. And then both sides lose.
The US supreme court has become a threat to democracy
t is critical that our democracy reform agenda also consider how to reform the judiciary.
Courts have too much power to radically remake our social and economic life
First, courts have too much power to radically remake our social and economic life.If this latest Trump appointment goes through, the resulting 6-3 far-right majority on the supreme court would have the power and opportunity next month to invalidate the Affordable Care Act (in the middle of a deadly pandemic). They would be positioned to further gut voting rights, reproductive rights and rollback anti-discrimination protections for LGBTQ+ and Black and brown Americans, while further shielding police departments and immigration officials from accountability for racist state-sponsored violence against people of color. While courts have at times also ruled in more progressive directions to advance rights and equity, on balance this concentration of power without sufficient accountability is a threat to democracy – and to the ability of our communities to thrive.
Second, courts today are a threat to democracy because of how they have been weaponized to skew political power and insulate extreme conservative coalitions from democratic accountability. Over the last decade, conservative jurists and their aligned partisans in the states and the Congress have combined to radically shift the terms of political power in the country towards corporations and away from working class communities and Black and brown communities in particular.
They have dismantled organized labor through “right-to-work” laws and union-busting judicial rulings based on a corporate-friendly reading of the first amendment. They have dismantled the promise of free and fair elections by needlessly gutting the Voting Rights Act from the bench, opening the way for rampant and highly effective state-based policies that suppress the votes of Black and brown Americans. They have greenlit extreme gerrymandering by ruling that federal courts are powerless to stop politicians from rigging district lines, and opened the floodgates to dark money controlling our politics.
The strategy is clear: rig and skew elections to win legislative power in states and in the Senate despite the party’s minority level of popular support; use that leverage to pack the courts with partisans; and then use those packed courts to further skew the electoral process and to block rival legislation, as a way to hold on to power. These moves amount to an attempt to election-proof conservative control, reserving for the right the ultimate trump card that would block legislative and electoral shifts needed to rebalance democratic fairness and advance progressive policies.To protect our democracy, Democrats must win state legislative electionsMeaghan WinterRead more
Therefore, if we are to defend and rebuild our democracy, we need to advance structural reforms – including reforming the courts themselves. Congress is already considering the For the People Act, a landmark bill that would restore and expand voting rights, stop the flow of big money in politics, advance fair redistricting measures, and much more. These measures should be passed first and foremost in any new administration.
But we must also start considering the prospect of structural reform to the federal judiciary.
First, we need a judiciary that is much more reflective of our country. We need more Black and brown judges, more women judges, more judges who have had lived experiences of inequity, discrimination and struggle. Like Thurgood Marshall before her, Ginsburg was one of the few supreme court justices who came into the role following a career devoted to advocating and litigating for equity, justice and inclusion. Her experience on the frontlines of the battle for justice informed her jurisprudence and brought critical perspective and balance to the court. Imagine what a court filled with justices with direct lived experience of systemic racism, of gender and LGBTQ discrimination, of the struggle against homelessness and hunger and unstable healthcare coverage, would look like, and what such a court would do.
Second, we need to protect democratic politics from being upended by the idiosyncrasies of an individual justice, or the randomness of when a justice might step down or pass away. That means regularizing the replacement process by establishing fixed and staggered term limits for justices. We could also expand the size of the supreme court, and move to a model akin to circuit courts of appeals, where cases are heard by randomly drawn smaller panels, with an option to appeal to the larger full circuit.
Third, we need to consider similar changes in the state courts as well. We have already seen brazen attempts to pack and rig courts in Georgia and Arizona to lock in partisan advantage in the face of demographic shifts and renewed Black and brown organizing and mobilization that threatens long-standing GOP dominance in these states. In states where state supreme court judges are elected, we see a troubling flow of corporate campaign dollars to swing these elections – and then see how these courts undermine the democratically-sanctioned efforts of elected officials to pursue needed reforms.
A better judiciary
Our history is full of moments where courts have been weaponized to resist democracy – and where court reform has been needed to usher in a more equitable and inclusive democracy.
At previous moments where our country came close to securing a broadly inclusive, multiracial democracy, defenders of white supremacy and economic power have leveraged the courts to block the advance of democracy.
In the years after the civil war, violent paramilitary white nationalist attacks on Black communities combined with a supreme court that pro-actively intervened to immunize these attacks from criminal prosecution and struck down new civil rights laws passed under the 14th amendment to unravel Reconstruction and usher in the era of Jim Crow.
The civil rights movement of the mid-20th century advanced a “Second Reconstruction”, restoring the push for an inclusive equitable democracy by winning the desegregation mandate of Brown v Board of Education, and securing the Voting Rights Act and the Civil Rights Act. The modern conservative obsession with taking over the courts represents a backlash exactly echoing the response to Reconstruction: it was after Brown that conservatives mobilized calling for Justice Earl Warren’s impeachment, and we saw the beginnings of the long march to seize the judicial power for the right.
Our history is full of moments where courts have been weaponized to resist democracy
Democracy and equity, on the other hand, have periodically required a taming of ideologically-extreme courts. Lincoln and the anti-slavery coalition won the 1860 elections in part on the explicit push to overturn the infamous 1857 Dred Scottcase that further codified the enslavement of Black Americans. Lincoln himself expanded the court to overcome its hostility to the civil war – and Republicans after the war removed the court’s jurisdiction to bypass its opposition to Reconstruction.
Franklin D Roosevelt famously threatened to expand the court in 1937 – and though he did not follow through on the threat, it was shortly afterwards that the supreme court abruptly reversed its pattern of striking down critical labor and economic regulations protecting workers and Americans in the height of the Great Depression.
This push came in the aftermath of nearly 30 years of progressive mobilization and campaigning against the “oligarchy” of the courts, which had become a primary barrier to needed labor and economic legislation protecting Americans from the inequities of the Industrial Revolution. It is not a coincidence that both of these efforts saw court reform as a critical component to advancing a more equitable and inclusive democracy, a precondition to preserve policies that aimed to dismantle deep systems of racial and economic subordination.
Today, we are fighting in this moment for the basic idea of a multiracial, inclusive democracy where Black and brown communities have the safety, security and freedom to the thrive. That battle requires structural change to dismantle our racialized systems of violence, economic inequality and unequal political voice. But it also will require building a better judiciary, one that enables, rather than frustrates, the process of democratic inclusion and responsiveness.
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