Women’s rights have expanded—and been rolled back—through the Supreme Court, making the fight for judicial reform central to the future of feminist democracy.
This is part of a new miniseries FEMINIST 250: Democracy’s Feminist Future, a special Ms. series examining the next chapter of American democracy through a feminist lens. As the nation approaches its 250th anniversary, the series explores how women and marginalized communities have shaped democratic progress, what lessons history offers for the challenges ahead, and how a more inclusive, representative and equitable democracy can be built for the next 250 years.
In 1974, Rep. Barbara Jordan (D-Texas), the only Black woman on the House Judiciary Committee and also a junior member, was asked to consider whether President Richard Nixon had engaged in conduct—“high crimes and misdemeanors”—that, under the U.S. Constitution, provides the basis for impeachment.
Jordan did not begin her remarks with a discussion of Nixon or the controversy of the day. She instead started with an explanation of the Constitution:
“‘We, the People.’ It is a very eloquent beginning. But when that document was completed on the 17th of September in 1787, I was not included in that ‘We, the People.’ I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation and court decision, I have finally been included in ‘We, the People.‘”
Jordan’s reminder—that the Constitution and the institutions it created were not originally designed to include all of us—is one we would do well to carry with us as we commemorate the anniversary of the Declaration of Independence.
In 2026, there is a real need to defend against incursions on our liberty. Democracy Forward, the organization I lead, has filed hundreds of cases in federal courts. We have won—and will continue to win—meaningful court orders that protect the rights of hundreds of millions of people in this county.
The courts are a major backstop in the fight for our democracy. And while we recognize this reality, we must not be precious about our institutions as they have existed or exist today. Many have failed to serve and protect all of us.
The Supreme Court is one such institution.
At the time of the Supreme Court’s creation, our laws did not recognize women’s right to vote or Black people as fully human.
It occupies a peculiar role in our democracy. Justices are unelected, and they hold the power to strike down laws created from the democratic process. The justification for such an institution is to ensure that the Constitution and our laws and rights are enforced for all—that the nation isn’t marked by the tyranny of the majority, but recognizes and respects the rights of people even when those people or the ways they exercise their rights are unpopular. Our democracy relies on the institutions of a republic to protect the inherent rights of all of us.
All of us is always the nub. Who is included in “We, the People”?
At the time of the Supreme Court’s creation, our laws did not recognize women’s right to vote or Black people as fully human.
Nearly a century later, just after the 14th Amendment (on paper) declared equal protection under the law, Justice Joseph P. Bradley famously stated in Bradwell v. Illinois, which upheld an Illinois law denying women the ability to become lawyers: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”
That was a member of our Supreme Court, siding with the majority of the Court, in 1873.
Another century later, through court decisions, social movement organizing, a constitutional amendment and federal legislation, Barbara Jordan, a Black woman lawyer, could serve in Congress and declare that she had finally become included in “We, the People.”
Indeed, the particular role of the Supreme Court of the 1950s through ’70s was one that sought to expand a restricted democracy—in cases like Brown v. Board of Education (racial integration), Miranda v. Arizona (defendants’ rights), Griswold v. Connecticut (contraception) and Roe v. Wade (abortion).
Yet, the backlash against a democracy that more fully represents and serves all has intensified in recent years.
Over the past decade especially, we have seen the 14th Amendment’s guarantee of equal protection and personal liberty be weaponized by opponents of civil rights—from the reversal of Roe, to the failure to recognize trans rights and the gutting of the Voting Rights Act … all at the hands of the Supreme Court.
The public’s confidence in the Court now hovers at historic lows, down to just 22 percent as of 2025.
The seeds of this declining trust could be traced to 2016, when the Republican-led Senate blocked President Barack Obama’s Court nominee, only to rapidly push through three nominees from President Donald Trump. The distrust has further intensified as people have seen the Court fail to be transparent and fail to reliably protect their rights—to the point of enabling the excesses of a president who denied election results and undermined the peaceful transition of executive power.
The ways the Supreme Court operates today exponentially undermine this confidence. The Court has no enforceable code of ethics. The opinion in Dobbs v. Jackson Women’s Health Organization was leaked weeks before the ruling, disrupting norms and raising concerns about politicization. The majority opinion in Dobbs contained language used by far-right antiabortion organizations that had worked to unofficially sway the justices. Concerns about outside influences and conflicts of interest have also been raised by reports of luxury gifts given to Justice Clarence Thomas by right-wing billionaires.
The Court, like so many institutions, can seem set in stone. But it has evolved many times before as a result of the people’s demands.
And, of course, there is the overuse of the so-called shadow docket.
A major factor in the Supreme Court’s legitimacy over time has been that it explains its reasoning for all to see. Even Justice Bradley’s opinion or decisions like Dred Scott were public—we may find the rulings abhorrent, but could at least learn the Court’s reasoning.
Monumental decisions are now made without explanation or transparency, as use of the shadow docket rises astronomically.
The option to swiftly decide motions was intended for true emergencies in which the Court must act quickly (for example, to pause an execution). Yet, during Obama’s presidency, the shadow docket was employed to stop the administration’s actions on environmental regulation. And more recently, the shadow docket has enabled the Trump administration to fire nonpartisan civil servants and to run roughshod over protections for people’s personal data—effectuating unprecedented expansions of executive power.
Justice Ketanji Brown Jackson has noted there are serious concerns that the Supreme Court’s modern practices “are having an enormously disruptive and potentially corrosive effect.”
All of this has put our democracy in crisis. And yet, the soaring words of Jordan—sitting in a room once closed to her—reveal what is possible.
“My faith in the Constitution,” she said before Congress, “is whole; it is complete; it is total.”
Jordan’s faith wasn’t in the document itself. It was in what people—We, the People—have done to insist and demand that the Constitution and our institutions truly serve all. We must make those demands today.
The Court, like so many institutions, can seem set in stone. But it has evolved many times before as a result of the people’s demands. Even the most doctrinaire originalist would agree that the founders envisioned institutions that change over time, which is why they created the ability for the Constitution to be amended, to be on the continual journey of building a “more perfect” nation.
As our country celebrates 250 years, we must again demand changes. Only a Court that has the confidence of the people can safeguard our rights and protect our democracy. Everything else we want to achieve—all the ambitious policies that would move us toward a more perfect union—depend on this. We owe it to future generations to get this right.
The Constitution provides the American people with a number of options to reform the Court. Some require congressional action, while others may require a constitutional amendment:
- Enact term limits, perhaps capping appointments at 18 years so presidents could appoint new justices every two years on a predictable schedule. This would encourage presidents to appoint the most qualified jurist rather than the one most likely to live longest. It would make it less likely that any one president could appoint a lopsided number of justices by happenstance.
- Expand the number of justices. Between 1789 and 1869, Congress expanded the Court four times and reduced it three times. More justices would ideally provide a wider range of views and reflect the enormous diversity of a country that is much larger than it was in 1869.
- Institute an enforceable code of ethics—just like for other federal judges. No one is above the law, not even Supreme Court justices, and even the appearance of impropriety saps public confidence. Undisclosed gifts paid for by powerful people with business before the Court make people question justices’ impartiality and suspect that the game is rigged.
Whatever changes we make will mean saying no to small thinking. We must remember that the Constitution was set up as a self-correcting system and it has mechanisms for adapting our institutions to the changing needs of our country.
When we condemn the actions of the Court today, it should be with clear eyes and a long memory: Progress in this country has always been driven by the people. Our institutions haven’t moved on their own. The nation’s groundbreaking civil rights cases were decided by the same institution that once upheld the structures of enslavement and Jim Crow. Our institutions were designed to evolve and learn from the wisdom and virtue of future generations—from the demands of the people.
The journey of American democracy has been one of the people demanding that the promises made for all really include all of us.
Continue Exploring FEMINIST 250
This essay is part of FEMINIST 250: Democracy’s Feminist Future, Ms. magazine’s sweeping series marking America’s 250th anniversary through a feminist lens. Much of the project is already live, including Founding Feminists, which reexamines the nation’s history through the women who shaped it; Feminist Lessons, which explores the defining victories, setbacks and organizing strategies of each decade since the 1970s; and the ongoing Democracy’s Feminist Future section, which looks ahead to the challenges and possibilities facing the next generation. We invite you to explore the full series and catch up on earlier essays, interviews and reported features examining how feminist movements have transformed the nation—and where the fight for a more inclusive democracy goes next.
