The Biden-Harris administration’s proposed Supreme Court reforms are an opportunity to move forward discussions on how to check the third branch of government.
President Joe Biden and Vice President Kamala Harris have thrown their support behind efforts to reform the Supreme Court. In the weeks that followed, Senate Majority Leader Chuck Schumer (D-N.Y.) promised to make these reforms a legislative priority.
These commonsense changes are an important response to a conservative supermajority wreaking havoc on our rights and our democracy. More importantly, it’s an opportunity to ensure moving forward that we’re always talking about how to check the third branch of government—not just when its legitimacy is on the line.
While we the people do not weigh in directly on who sits on the federal bench, our voice is supposedly democratically expressed through our election of the president who nominates, and Senate who confirms, federal judges. The courts had long served as a pillar of our democracy until conservative forces waged a decades-long campaign to twist the judiciary to its antidemocratic liking.
Today, of the conservative majority on the Supreme Court, only one—Justice Clarence Thomas—was appointed by a president who won the popular vote. And instead of being answerable to the people, Justices Thomas and Samuel Alito have for years accepted millions of dollars worth of gifts and luxury trips from wealthy benefactors with interests before the Court, often without following the most basic of disclosure guidelines.
The need for reform is clear—and something that voters across the political spectrum want.
Given the way some Supreme Court justices act with impunity, it’s disturbing to reconcile that the most significant impact of the judicial branch is checking the work of the other two branches to ensure that the legislature passes laws that are constitutional and that the executive enforces those laws correctly and constitutionally. Yet, as conservatives took over the courts, we still trusted the courts to also check themselves. Both Congress and the president (via the Department of Justice) have their own ways of responding to the Court that should, in fact, be standard operating procedure.
While it’s not one of the administration’s recommendations, consider that controlling the size of the Court has always been Congress’ purview. The Constitution does not specify the size of the Court, and Congress originally set it at six members. It has been changed many times since then to five (1801), back to six (1802), seven (1807), nine (1837), 10 (1863), seven again (1867), and then back to nine (1869).
Many of these changes were explicitly for political reasons—such as to try to let President Lincoln appoint another pro-Union, anti-slavery justice and to then prevent his successor Andrew Johnson from appointing any.
Besides needing to respond to the political excesses of the current Court, there are plenty of sensible reasons to consider expansion. The U.S. has one of the smallest high courts on the planet, and there aren’t even enough members to oversee the 13 circuit courts, requiring some justices to double up. Meanwhile, even as the country grows, the Court has heard fewer and fewer cases each term and taken even longer to issue its decisions, raising real questions about whether it is properly staffed.
Why shouldn’t we be talking about whether the Court is serving the needs of our justice system?
The administration’s proposals speak to a starting point for these kinds of conversations. The proposed constitutional amendment to ensure no president is above the law is an important response to the Court’s immunity decision in Trump v. U.S., as is the newly proposed No Kings Act. Term limits and an enforceable code of ethics will help modernize our system and rein in the rampant corruption and political excess plaguing the Court.
What’s important isn’t whether these can pass today. What matters is recognizing that they remain on the table moving forward.
Reform, after all, can’t come soon enough. The president’s commission on the Supreme Court during his first year in office was an opportunity to analyze the history of court reforms and discuss why reforms are important. Concerns were already high because of how Senate Republicans had blocked President Obama’s 2016 nominee Merrick Garland during an election year—arguably another change to the Court’s size for over a full year—only to hypocritically confirm Amy Coney Barrett mere weeks before the 2020 election. Alliance for Justice joined others in testifying about the importance of a code of ethics, term limits and expansion to counter this rigged 6-3 Court well before it issued chaotic decisions like Dobbs, Bruen and Trump.
Support for these reforms has grown for obvious reasons in the years since, as the Court has abused its power while wallowing in corruption. One is left to wonder how things would be different today if these notions weren’t treated as unprecedented reactions to the current Court but instead par for the course in the administration of our republic.
Now that they’re there on the table, however, we have a duty to keep them there and continue to grow them.
Yes, we need term limits to make sure justices don’t get too cushy and to create a more standardized schedule of appointments that will depoliticize vacancies. Yes, we need an enforceable code of ethics because this Court has already told us how willing they are to let themselves off the hook.
But that must be the beginning of our efforts.
We must also discuss expansion, as it’s one of the only immediate remedies to the Court’s current extremism.
We must discuss transparency of the Court’s work so that the justices can be more visible—and thus accountable—to the public. Gift limits and more robust disclosure requirements will provide additional protections against the flagrant corruption we know is happening.
Various constitutional amendments should be discussed to modernize our laws in the face of the Court’s distorted history and tradition originalism.
There are likely other ideas and improvements we haven’t even contemplated that are well within our grasp.
Court reform should be seen as maintenance, not revolution. We don’t get to vote in—or vote out—our justices, but we do have elected leaders who have a responsibility to respond to the third branch. President Biden has started that conversation for the first time in modern history, and we have a duty to ensure not only that it’s productive—but that it never truly ends. It’s what our democracy deserves.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
