This is part 10 of the Saving the Court series. I would encourage you to read previous posts, including
- Saving the Court: Announcing the Project (Part 1)
- Saving the Court: How We Got Into This Mess (Part 2)
- Saving the Court: A History of Supreme Court Reform Efforts (Part 3)
- Saving the Court: The Nomination and Confirmation Process (Part 4)
- Saving the Court: Expanding the Number of Justices (Part 5)
- Saving the Court: Term Limits (Part 6)
- Saving the Court: The Court’s Role in the Constitutional Process (Part 7)
- Saving the Court: Court Procedures and Processes (Part 8)
- Saving the Court: Other Proposed Reforms (Part 9)
The Supreme Court is facing several issues that it must overcome in order to stay legitimate and credible in the minds of the American public. The problems start with a seemingly dysfunctional nomination and confirmation process that continues to escalate with no sign of slowing down. Democrats and Republicans are both to blame for the dysfunction, which threatens to expand outside the confirmation process and potentially impact the operation of the Court itself.
Justices are staying on the Court for increasingly long terms, resulting in more and more geriatric jurists who outstay their most productive years, staying on the Court into periods of, what one observer called, “mental decrepitude.” These longer and longer terms also lend themselves to an increasingly unbalanced Court that rules on cases with views and values that are no longer shared by a majority of the public.
Because of the imbalance on the Court, case decisions are seen as more and more partisan. Opinions seem pre-ordained, leading many in the public to view Justices as pushing a political agenda rather than impartially ruling on the cases before them.
The result of all of these factors is a Supreme Court that is increasingly viewed as illegitimate by the American public. The call has increased in recent years to reform the Court, and several reform proposals have been examined in this series. By combining a few of the proposals, I believe legitimacy of the Court in the eyes of the public can be restored and strengthened.
The proposals I would recommend are:
- Nomination & Confirmation Process – Clarify rules surrounding the confirmation process in the Senate focusing on timelines for hearings and uniformity in the process. By far, this is the most important and effective reform Congress can make to address the Court’s legitimacy crisis.
- Term Limits – Implement term limits of 18-years for Supreme Court Justices and guarantee that each President, regardless of party or Court size, will get a minimum of two appointments to the Court per term, to be made in odd numbered years.
- Supermajority Vote Requirement – Require a supermajority vote of 6-3 to invalidate any act of Congress or Executive order. This will help to restore a constitutional balance to the three branches of government, slightly moving some power back to the democratically accountable branches.
- Emergency Orders – Reform “shadow docket” procedures to provide more accountability of Justices, more guidance to lower courts and the government, and more transparency for the public.
- Judicial Ethics – Require that Supreme Court Justices follow a written code of conduct. This can be the existing code followed by lower federal court judges (The Judicial and Disability Act of 1980) or it can be a separate code of ethics created by either the Justices themselves or Congress.
- Transparency – Decisions of the Court should begin to be televised immediately After a suitable time to work out any bugs and address any concerns the Justices might have, Court proceedings, including oral arguments, should be televised. The work being done by the Supreme Court is important to all citizens, and they deserve to be able to watch the Court in action.
There’s one other reform proposal that I didn’t include in this list that tends to be the most popular. A majority of Americans support increasing the size of the court. Although it’s popular, it is a double edge sword. On the one hand, increasing the size of the Court—usually proposed as going from the current size of nine Justices to thirteen—would defeat the reactive right-wing nature of the current Court, which would help strengthen our democracy. Obviously, that’s a good thing. However, increasing the size of the Court would likely feel too contrived and political, which would almost certainly further deepen the Court’s legitimacy crisis, at least in the short run.
I have to admit that I don’t feel comfortable advocating for increasing the size of the Court. Like so many other Americans, I’m increasingly angered by both the Justices’ ethical lapses and the often partisan decisions reached by the Court. Changes need to be made. Even so, I’m very leery of doing anything that would make the Court even less legitimate in the eyes of the public than it already is. We can’t save the Court by destroying it’s legitimacy.
