Power will shift in January, but conversation about the necessity of and path to judicial reform as a way of laying the legislative groundwork must continue.
Come Jan. 3, 2025, both the Senate and the House will be in Republican hands. A few weeks later, on Jan. 20, Donald Trump will return to the White House. With a slim Democratic majority in the Senate and a Republican House, the likelihood Democrats could make headway on judicial ethics over the last four years was never high. It’s now nil. The need for reform, however, is greater than ever—as is public support for it.
Just 43 percent of Americans approve of the job the Supreme Court is doing. Moreover, even most Republicans nationwide support judicial reform: 70 percent want a strong code of ethics for the Supreme Court; 54 percent favor a constitutional amendment reversing Trump v. United States, the Supreme Court decision that placed the president above the law; and 51 percent agree Supreme Court justices should be term limited.
Senate Majority Leader Chuck Schumer promised to prioritize Supreme Court reform should Democrats prevail in the 2024 election. But losing the election doesn’t mean there’s no room to lay groundwork for judicial reform. Outrageous ethical and legal transgressions by members of the Supreme Court, from luxury trips to “Stop the Steal” flag antics, have fueled public scrutiny and inspired a cornucopia of reform bills—as well as calls for impeachment in the case of Justices Clarence Thomas and Samuel Alito.
Frameworks for Judicial Reform
A binding code of ethics for the Supreme Court is in reach—if not right away. Despite facing unprecedented negative public opinion, the justices refused to do more than issue vague language on ethics without a mechanism of enforcement. Chief Justice John Roberts phoned in a dismissive letter, rather than addressing the Senate Judiciary Committee.
These actions attracted rather than alleviated concern. As a result, reform proposals have gained both congressional traction and public favor.
The highest-profile proposed Supreme Court reform bills’ provisions range from enhanced ethical guardrails for recusal and reporting of gifts, perks, and financial entanglements to limiting justices’ active terms to 18 years (and requiring staggered appointments every two years to promote a more balanced Court) to expanding the Court. A bill recently proposed by Sen. Ron Wyden, the Judicial Modernization and Transparency Act, weaves several ideas together to advocate for a 15-justice Supreme Court with much stronger ethical protections.
Other proposed judicial reform legislation targets forum shopping, a favorite tactic of conservative impact litigators who rely on single-judge jurisdictions, like that ruled by hardline Republican partisan and Trump appointee Matthew Kacsmaryk. There, lawyers know they need only convince a single sympathetic judge to achieve national impact—as with blocking access to mifepristone.
The most important, if most challenging, judicial reform that Congress must undertake is reversing the Supreme Court’s outlandish ruling in Trump v. United States, which granted Trump and successors president immunity for acts in office. In an ideal world, Congress and the states would pass a constitutional amendment to remedy the ruling and restore the separation of powers, as President Biden has proposed. The more realistic path to doing so lies with congressional legislation like Schumer’s No Kings Act, the title an allusion to Justice Sonia Sotomayor’s dissent in the case.
“In every use of official power,” wrote Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, “the President is now a king above the law.”
The most viable of judicial reforms, a bright spot, takes the form of a joint effort by Sens. Lisa Murkowski and Maisie Hirono: The bipartisan, bicameral Judiciary Accountability Act (JAA). Introduced on Sept. 25, the JAA would implement reforms to protect judiciary staff and clerks in the workplace. The bill is particularly relevant in the wake of revelations about a now-former Trump judge in Alaska and given the culture of disregard for ethics and norms created by the current Supreme Court—two members of whom have been credibly accused of sexual harassment or assault.
Looking Ahead: The Next Administration
During Trump’s first term, he and ally Sen. Mitch McConnell, with assists from dark money impresarios like Leonard Leo of the Federalist Society, aggressively pursued judicial confirmations. They secured 234 Article III judges—a quarter of the federal judiciary and a third of the Supreme Court. Lower court appointees were, overall, extremely young. Some were desperately, even historically, unqualified.
Trump Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, meanwhile, have inflicted devastating blows to democracy broadly and regulation, affirmative action, voting rights, reproductive rights and LGBTQ+ rights, among others.
A Court that’s flagrantly rewritten the Constitution and regularly issued overtly partisan rulings to benefit Trump isn’t likely to stop.
In the next year alone, Trump and his brethren may get to replace as many 122 lifetime judges based on announced and anticipated judicial vacancies from now through the end of 2025.
And while Trump has rejected progressive judicial reforms, there’s at least one reform-adjacent proposal he’s likely to take up. Although Republicans strenuously opposed expanding the lower courts under Biden, overdue as a matter of capacity by decades, expect the 119th Congress to rediscover the importance of doing so—using judicial backlogs and population growth as pretexts for creating seats to capture an even greater proportion of the judiciary.
While no substitute for direct judicial reform, the Biden administration’s and Senate allies’ efforts to fill every judicial vacancy matter. The appointments of independent, fair-minded and diverse judges restore measures of balance and integrity to a judiciary badly damaged by Trump’s first term. And because Biden and Senate Democrats prioritized judicial appointments, the second Trump administration will inherit a historically low number of judicial vacancies.
If the Senate is willing, that work can continue through the lame duck period. Even outgoing Sen. Joe Manchin has signaled his willingness to act on nominations. Senators must spend evenings and weekends at work, invoking cloture to force votes, as they already have, and remain in Washington over holiday breaks, as Sen. Dick Durbin has suggested. If they do so, they can confirm all of Biden’s remaining nominees to limit Trump’s impact on the courts.
Judicial reform is critical not just to the integrity of that branch of government but to the checks and balances among the three branches—and the rule of law in the United States. With its immunity decision, the Roberts Court stole from Congress the power to define who is subject to the laws it makes. A Court that’s flagrantly rewritten the Constitution and regularly issued overtly partisan rulings to benefit Trump isn’t likely to stop.
Still early in the Court’s current term, the justices have already granted cases offering myriad opportunities to undermine Congress further by revising federal laws and dictating how they are enacted. The latter is now easier for all federal courts thanks to this Supreme Court’s decision in Loper Bright v. Raimondo, holding that judges can usurp agency experts when it comes to implementation. The Court has also teed up one case with the potential to make holding government actors accountable for civil rights violations even harder—and another that could make discriminating against transgender Americans even easier.
All three branches of government have been warped by this Supreme Court’s actions, with no end in sight. Major judicial reforms are the only path to restoring the balance of powers, creating (or reinstating) mechanisms for presidential and judicial accountability, and repairing the judiciary—as well as regaining public trust in the courts and federal government. Power will shift in January, but conversation about the necessity of and path to judicial reform as a way of laying the legislative groundwork must continue.
