Supreme Court building (from Supreme Court website)
Once Trump is out of office – and one way or another, he will be – and Democrats have regained the Federal trifecta of Presidency, House, and Senate – and they will – it will be time to act to ensure that this never happens again. While restraining the powers of the presidency is one key (see my diary about reforming Presidential pardon powers), another is reforming the Supreme Court.
I will not even attempt here to recount the issues that have arisen with the current Supreme Court: its extreme partisanship towards the Republicans, its deference to Donald Trump (such as staying many well-reasoned and legally sound lower court orders ruling against his most legally questionable acts), its casual overturning of decades-old precedents that implies much of our hard-won legal rights are in fact disposable, its stunning blind eye towards ethics and corruption in its own membership (see Clarence Thomas and Samuel Alito), and more. Instead, I want to encourage discussion of some of the key proposals for reform.
The Constitution gives Congress control over the size of the Supreme Court, its jurisdiction, and the structure and jurisdiction of all lower federal courts. Arguably, it gives Congress the authority to set other rules – such as ethics codes – about how the Supreme Court must function, though pushback against any such efforts by the Court would be expected. And certain things it cannot do, such as set term limits for judges (who serve lifetime appointments and cannot be removed except by impeachment). That said, here are brief summaries of various proposals that have been made (I claim no originality for any of these).
Expand the court. Lifetime appointments ensure that the conservative wing can potentially dominate the court for decades more. One idea is to expand the court, possibly to 12 judges (the equivalent of one justice for every U.S. circuit court). Even if all were appointed simultaneously by a Democratic president, this would still leave an ideological deadlock of 6-6 in the court, but that would be preferable to a court that actively overturns previous laws or decisions (such as the Voting Rights act) that threaten the rights of all Americans. Expansion to 14 justices would overcome even this issue. Any such expansion would be resisted by every Republican in the Senate, so a carry-out to the filibuster would have to be used to enact this. One way to make expansion palatable to hesitant Representatives or Senators might be to make it gradual (e.g. one new appointment after each of the next 5 Presidential elections, as well as replacement of any justice who die or retire), which would would leave conservative dominance in place for the near future.
Back-door to “term limits.” Federal judges cannot be term limited, but currently lower court judges can choose to take on senior status. This is a form of semi-retirement in which the judge continues working but with a much-reduced workload, while continuing to receive full pay. Taking on senior status then opens a full-time slot on the court where they currently serve. Could the senior judge system be made mandatory and applied to the supreme court? Technically the judge is not being removed from the bench, so perhaps this would pass constitutional muster. However, the Supreme Court might actively resist this plan as well.
Apply a code of ethics to the Supreme Court. A code of ethics could then require recusals by justices (for example, from any decision on criminal or civil matters where the president who appointed the judge is a party, or someone who has provided gifts to the justice in the past). While not affecting the current ideological imbalance, this could mitigate the worst abuses, and possibly receive broader support than a more “radical” proposal like expanding the court’s size. But again, the current SC could actively resist such a change.
Revise the Supreme Court’s jurisdiction. This is fully within the power of Congress. It would be possible, for example, to create a new court and assign it jurisdiction over cases directly focused on the Bill of Rights (such as freedom of speech or the press), voting rights, or any other matters that Congress decides. Stock with solid liberal/progressive judges and then sit back and watch. This too would be opposed by all Republicans and would require a filibuster carve-out (assuming we don’t abolish the filibuster entirely, which is a whole separate topic I hope to address).
None of these ideas are mutually exclusive, and maybe all are desirable to some extent. Perhaps we need an expanded court that is subject to a code of ethics , requires justices to move on to senior membership after a certain age, and that has some of its jurisdiction transferred to a new court. But let’s discuss! Give us your thoughts in the comments. Also please complete the poll as well.
