Stopping SCOTUS’s Death Grip on Our Democracy

Last week, President Biden publicly announced his proposals for Supreme Court reform. Though late to the party, the initiative importantly signals a shift in appetite among top Democratic leaders. Court reform is no longer a fringe idea; party leadership is willing to have a conversation about what it will take to put the Supreme Court (derogatory) in its place—and finally respond to Americans’ historic levels of disapproval of the Court. Biden, of course, will not be the one to implement the proposals. But Vice President Harris, as the presumptive Democratic nominee, has also expressed her support for the measures. Now, she must run on seriously expanding them, and deliver on her promises to meaningfully reform the Court once in the Oval Office. Without doing so, her agenda is pretty much doomed.

The threats posed by the Court probably don’t bear repeating in too much detail at this point, since readers are likely all too familiar with the decisions that our nation’s finest legal minds have imposed on us. But a quick refresher, in case you need it: Since then-Senate majority leader and Yertle the Turtle doppelganger Mitch McConnell stole two Supreme Court seats from Democrats and Trump filled a third with someone perhaps better suited for a career as a JV football coach, the Court has demonstrated its commitment to serve as a frontline leader in the authoritarian takeover of our government. Its decisions have forced pregnancy on citizens, greenlit presidents to break the law with impunity (so long as the orders to do so are put on presidential letterhead or something), and prevented regulatory agencies from doing what they literally exist to do. At the same time, some of the same justices vociferously leading the juristocratic charge against our democracy have also been embroiled in numerous scandals, calling into serious question their ability to be unbiased about anything.

Biden’s court reform proposals are an acknowledgment that this isn’t okay, that we shouldn’t be accepting this as normal, that the fate of virtually every progressive priority—let alone the very future of our country—depends in large part on rebalancing the power of the Court over our society.

The problem is, on their own, the proposed reforms don’t really do that, and certainly not with the level of force or on the timeline we need.

Biden’s plan calls for term limits and an enforceable code of ethics for justices, in addition to a constitutional amendment that would prohibit immunity for crimes a former president committed while in office—effectively undoing the Court’s incredibly broad presidential immunity decision in Trump v. United States. To be sure, each of these three measures are solid, necessary ideas a majority of Americans support:

• Swapping lifetime appointments for single, 18-year term limits would help rebalance the ideological makeup of the Court and make it more accountable to the American people. Such a plan would mean that each president would fill two—and not more than two—Supreme Court seats every four years, curbing the current practice of multigenerational rule by individual justices. And it would put the US in line with the top courts of other advanced democracies, none of which have lifetime appointments.
• An enforceable code of ethics would also be a step in the right direction, though that’s not exactly saying much; before last year there was no code of conduct at all for Supreme Court justices, making it, up until then, the only federal court without such a code. It was only after public pressure reached a boiling point, upon news of Justices Samuel Alito and Clarence Thomas receiving luxury gifts from billionaires involved in cases before the Court, that the Court adopted a code of ethics. The code it adopted was largely modeled off of the code of conduct for lower federal court judges, though it’s worth pointing out that the justices took the liberty of changing up some language here and there—you know, standard things, like adding some qualifiers or swapping “must” or “shall” with “should.” But most importantly, the justices conveniently left out any mechanisms to enforce the code, and the scandals have only continued since then. A code of conduct that actually has some teeth and requires justices to disclose gifts, limit their public political activities, and recuse themselves if they or their spouses have a conflict of interest should have been in place a long time ago.
• And lastly, it doesn’t take a law degree to see that a country that purports to be a democracy probably shouldn’t have a constitution that leaves legal room for presidents to assassinate their political rivals. The No One Is Above the Law Amendment Biden proposes, if ratified, would ensure that presidents are not immune from prosecution for crimes committed while in office. (You’d think it goes without saying, but here we are.)

Again, these are good, commonsense measures any functional democracy should embrace. And yet in the scheme of possible solutions to the crisis Republicans on and off the Court have created, these proposals are, without question, too modest and insufficient on their own. Enacting term limits is critical to capping the power of individual justices in the future, but it presupposes that our democracy as we know it will survive the manifold attacks against it—attacks that are in no small part being waged by the Supreme Court itself. In other words, term limits do nothing to address the immediate threat posed by the six reactionary and power-hungry justices on the Court (perhaps most recently exemplified by Justice Neil Gorsuch’s ominous warnings that Biden should “be careful,” because his proposed court reforms would jeopardize judicial independence and subject “unpopular” people to government persecution), and they certainly don’t do anything to curb the power of the Supreme Court as an institution.

Moreover, instituting term limits likely requires a constitutional amendment, but even if Congress passes legislation to try to enact term limits, it will certainly face constitutional challenges—and anyone who’s taken a middle school civics class in the US knows who gets to decide questions of constitutional law.

Similarly, instituting an enforceable code of ethics for justices is a necessary but inadequate move. Requiring justices to disclose their gifts is nice, but let’s not forget that these people are a mix of shameless ideologues and partisan hacks; thus far, they’ve remained unfazed by public reports of their corruption, and while disclosure mandates should certainly be in place, they won’t do anything to dampen the efforts of far-right justices to advance their regressive political agenda. Likewise, it would be great if a justice whose wife played a role in orchestrating an attempted coup were forced to recuse himself from cases about said–attempted coup, but it doesn’t change the fact that that same justice would still hold undue power to undermine our democratic system in hundreds of other cases.

And finally, the No One Is Above the Law Amendment is an important political move on the part of the Democrats, but it is unfortunately likely to be merely symbolic, given how notoriously difficult it is to amend the Constitution. Ironically, this difficulty is a central part of the reason the Court holds such inordinate power over our society, and one way its power is reinforced—the effective inability to amend the Constitution leaves more space for the Court to dictate what our Constitution says. The only practical way around this problem, at least within our current system, is to rein in the exorbitant power of the Supreme Court via measures that don’t require constitutional amendments.

This is where Harris must step in (and there is reason to be cautiously optimistic that she may be more willing to stand up to the Court than Biden is). Her administration must push for bolder and better reforms—reforms that don’t require constitutional amendments, and that are necessary to help safeguard our democracy in the immediate term. These stronger reforms should go hand-in-hand with Biden’s proposed constitutional amendment and his efforts to enact term limits and an enforceable code of ethics for justices. Failure to take this kind of serious action not only makes it virtually impossible for Harris’s policy agenda to be realized, but it also all but guarantees the further decimation of the hard-fought wins of the past century.

So what do those stronger reforms look like?

There are several good ideas out there, but the most immediately impactful, and therefore most important, reform is court expansion. Court expansion would add seats to the Supreme Court (preferably four, as Senator Edward Markey’s proposed Judiciary Act would do) and pave the way for a rebalancing of its composition, so that Christian nationalist election deniers get less of a say in how our country functions. (Harris has, in the past, expressed being “open to” a conversation on court expansion, which, while not the boldest of statements, is more than Biden ever gave us.) Critically, court expansion is clearly constitutional, and it’s well established that Congress holds the power to decide the size of the Supreme Court; in fact, the legislature has changed the number of seats on the Court seven times before, and as readers of an FDR-inspired Substack surely know, in his day, President Roosevelt proposed court expansion in the face of a Court dead set on stifling progressive wins. The stakes today are arguably higher than they were then, and failure to expand the Court could be truly catastrophic for generations (the decisions the extremists on the Court have handed down in the past few years alone have already proven that point—now imagine how much worse it could get with a few more decades of power under their belt). One study found that preserving the status quo could mean that the Court doesn’t see a majority appointed by Democrats until 2065. And with an expanded Court, other worthwhile reforms to the institution become far more feasible.

In addition to court expansion, Harris should also embrace jurisdiction-stripping, an important measure that would limit or do away with the Court’s authority to hear certain kinds of disputes (such as constitutional challenges to federal laws, or cases concerning specific issue areas, like abortion rights), or to entertain constitutional challenges to federal laws. Measures that would strip the Court of its gargantuan power to interfere with some congressional actions, even in only a few areas, would go a long way in rebalancing its role over our lives and society. And, like court expansion, it wouldn’t require a constitutional amendment. The Constitution states that the Supreme Court has “original jurisdiction” over a very narrow and specific set of disputes—those among states, and those involving ambassadors and other public ministers. But for all other disputes that don’t fall under the Supreme Court’s original jurisdiction—that is, the vast majority of cases that come before it—the Constitution grants the Supreme Court “appellate jurisdiction” and expressly states that Congress has the power to make exceptions to that appellate jurisdiction. In other words, Congress has authority to restrict the Supreme Court’s ability to weigh in on a wide swath of issues. Disempowering reforms like jurisdiction-stripping are particularly important because they directly attack the root of the problem: that the Supreme Court simply wields too much power over our system of government and individual private lives.

Over the past two weeks, Harris and her campaign have demonstrated the vice president’s political acumen by re-energizing not just a disaffected base, but by seemingly mobilizing some undecided voters as well. Her political astuteness has been paired with a signaled commitment to a domestic policy agenda that could not only solidify the wins of the Biden-Harris administration, but build on them: universal pre-K, paid medical leave, greater access to affordable housing, permanent expansion of the child tax credit, stronger labor protections for care workers, higher taxes on the wealthiest Americans, and a further build-out of the middle class. That’s an impressive list of priorities, and that’s just on the economic front. But the thing is, it’s highly unlikely that any of these policies will see the light of day without serious court reform measures that can actually be passed and implemented.

It’s not just Harris’s agenda that stands to fall apart before a reactionary Supreme Court, but pretty much all of the 20th-century wins countless organizers and activists tirelessly fought for. So while Biden’s proposals are a welcome first step, both Harris’s own success and the future of our democracy depend on bolder measures to curb the Court’s death grip on our country.

If You Ask Eleanor 

“We have done many things that provided neither freedom or justice, but the idea still lives and I wonder if right now it doesn’t need to be pulled out and dusted off and have some very fundamental thinking done about it.”

– Eleanor Roosevelt, My Day (January 7, 1953)