[As the court concludes another term that upended lives,
conservative justices are attracting criticism for their rulings and
their behavior away from the bench]
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‘DEMOCRACY IS AT RISK’: INSIDE THE FIGHT FOR SUPREME COURT REFORM
 
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Joan E Greve, Ed Pilkington
July 9, 2023
The Guardian
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_ As the court concludes another term that upended lives,
conservative justices are attracting criticism for their rulings and
their behavior away from the bench _

, Karen Bleier/AFP/Getty Images

 

The Supreme Court has concluded another term that upended Americans’
lives.

Last week, the court’s conservative supermajority ruled against
[[link removed]] race-conscious
decisions in college admissions, overturning decades of precedent
supporting affirmative action. A day later, the six conservative
justices both struck down
[[link removed]] Joe
Biden’s student debt forgiveness plan and sided with a
Colorado-based business owner who wanted to refuse service to same-sex
couples.

As the conservative justices’ decisions attracted criticism, their
behavior away from the bench also sparked alarm. Reports emerged that
conservative justices Clarence Thomas
[[link removed]] and Samuel
Alito
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accepted previously undisclosed gifts and trips from wealthy
stakeholders whose business interests at times clashed with cases
before the supreme court.

The outcry unleashed over the justices’ ethics scandals, combined
with the widespread disapproval of their opinions, has intensified
calls to reform the supreme court. And although court reform efforts
have previously been denounced as radical overreach, more Americans
are warming to the idea in the face of a six-three conservative
supermajority issuing decisions viewed as largely out of step with the
country’s principles and priorities.

“Democracy is at risk,” Congressman Hank Johnson, a Democrat in
Georgia, said. “We must save this supreme court from itself, and
that’s why it’s so important that we do court reform now.”

Confidence in supreme court plummets

The combination of contentious rulings and dubious ethical behavior
has culminated in plummeting ratings in that other all-powerful court:
the court of public opinion.

Gallup has yet to release its latest poll in the wake of the slew of
recent ethics scandals and aggressive decisions released in the final
days of the 2022-23 term. But the historic trend of its surveys
[[link removed]] gives a clear
picture. In 2001, under Chief Justice William Rehnquist, 62% of
Americans approved of the way the supreme court handled its job,
according to Gallup; by last September that had fallen to just 40%.

Such a profound dip in popularity has ushered in a proportionate rise
in demands for reform, ranging from calls for ethical guardrails for
the justices to proposals for a radical makeover of the court’s
structure and size. One Economist/YouGov poll
[[link removed]] taken in
April found that 69% of Americans support an ethics code for supreme
court justices. Another AP-NORC poll
[[link removed]] taken
last year showed 67% of Americans back term limits for the justices,
and a Marquette Law school survey
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last September found that 51% of Americans agree with calls to expand
the court.

Gabe Roth, executive director of Fix the Court
[[link removed]], a non-partisan group which advocates for
reform, said that a growing perception that the conservative justices
are acting more as politicians than as judges was driving the calls
for change.

“I’ve been beating this drum for almost 10 years, and it is
definitely getting louder. The series of recent events have left no
doubt today that the supreme court is a political body, and it is only
rational to want the justices to have to follow the same ethical rules
that politicians follow.”

As things currently stand, the nine supreme court justices are the
only judges in the country – including both state and federal –
who are not bound by any formal ethics code. The justices remain
essentially unbeholden to any higher power.

In April, the current chief justice, John Roberts, refused to appear
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the Senate judiciary committee to discuss the ProPublica revelations
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Thomas’s luxury holidays courtesy of the billionaire Republican
donor Harlan Crow. Roberts insisted that he and his fellow justices
“consult a wide variety of authorities to address specific ethical
issues” – without addressing the main problem with that argument:
that such consultations are entirely voluntary and self-policing.

Ethics groups like Fix the Court have despaired of Roberts taking a
lead on ethics reform, and are now pleading with Congress to force the
issue. Roth said the current malaise was so profound it had gone
beyond merely extending the existing code of ethics
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since 1973, has applied to all other federal judges.

Now, he said, it had to be enforceable, with “a mechanism for
reprimand when there are violations”. “There needs to be a more
strict rubric telling justices what they can and cannot do when it
comes to flying around on billionaires’ planes or staying in their
luxury resorts,” he added.

Senator Chris Murphy of Connecticut joins activists in a call for
ethics reform in the supreme court in May. Photograph: J Scott
Applewhite/AP

Requiring the justices to abide by clear ethical boundaries might
clean up some of the grubbier optics but it would not get to the
substantive problem that progressive critics have levelled at the
court – its ultra-conservative rulings
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“Right now we have nine kings, who can set policy for eternity –
their rulings cannot be undone in constitutional cases by the
president or Congress,” said Caroline Fredrickson, a law professor
at Georgetown University.

Like Roth, Fredrickson has observed a sea-change in attitudes towards
reforming the nation’s most powerful court. “Five years ago, this
was a discussion more for academics than for activists. I don’t
think that’s true any more – we’ve had a series of decisions
that have finally brought the American public to recognize that the
court is out of control.”

Fredrickson was one of a bipartisan group of 36 legal and other
scholars who Joe Biden invited in April 2021 to form a presidential
commission [[link removed]] on supreme court
reform. One of the key proposals that the commissioners analysed was
the idea of expanding the court from its current nine members in order
to rebalance the court in tune with the will of most Americans.

The commission’s final report
[[link removed]] points
out that Congress has made changes to the size of the court since as
early as 1801. The current nine has been set since 1869, but there is
no reason that Congress could not change that number through simple
statute.

Commissioners were divided on the subject of expansion. Some argued
that adding seats was essential to make the court relevant again and
prevent the erosion of democracy, while others feared it would
undermine the supreme court’s independence and legitimacy.

Fredrickson comes firmly down on the side of expansion. “The only
realistic option for protecting our democracy is to expand the number
of justices, which would allow the appointment of justices with a
firmer grasp of the need to be properly deferential to the elected
branches,” she said.

Aligned to the question of how many justices sit on the court is the
issue of their longevity in the position. The US constitution says
that federal judges should hold their office “during good
behavior” – a phrase that has been interpreted as meaning for
their lifetimes.

A new report
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the Brennan Center spells out how life tenure has led to increasingly
long terms, and with it an increasingly undemocratic court. For the
first 180 years of US history, the average service for supreme court
justices was 15 years; today that has risen to 26 years and the
current crop could serve on average 35 years.

With long terms has come a democratically skewed judicial panel. Since
the presidency of George HW Bush, Republicans have won four out of
nine presidential elections – only two prevailing in the popular
vote – yet they have appointed six out of today’s nine justices.

The Brennan Center recommends a new interpretation of “during good
behavior”. Justices continue to serve for life, but after 18 years
of actively judging cases they step back into a more supporting role
– a “senior” status that has been applied to lower court judges
for more than 100 years.

Under Brennan’s formula, that would be coupled with regular
appointments to the bench made every two years, so that each president
would have two appointments per four-year term. That could instantly
put an end to the ugly hyper-partisan infighting and obstructionism
that saw the Republican Senate block Merrick Garland’s appointment
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Barack Obama in 2016.

But many progressive activists argue term limits alone will not
provide an immediate remedy to their concerns. They accuse Republicans
of having “stolen” the court by refusing to consider Garland’s
nomination and then fast-tracking the confirmation of Justice Amy
Coney Barrett days before Biden won the 2020 election. One academic
study
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that, barring congressional intervention, the supreme court may not
see a liberal majority until 2065.

“Even if you passed a term limits bill with a code of ethics, it
wouldn’t do much to put a dent into what is right now a Republican
supermajority,” said Brian Fallon, executive director of the
progressive group Demand Justice. “If you want to restore balance to
the court, if you believe that the Republicans arrived at this
six-three supermajority through illicit means, then court expansion
becomes necessary to achieve balance anytime soon.”

Political momentum builds for court reform

As Americans continue to reel from the court’s decision last year to
overturn Roe v Wade, terminating federal protections for abortion
access, the reproductive rights groups NARAL Pro-Choice America and
Planned Parenthood have both come out in favor of court expansion.

“We’ve known for a long time that reproductive rights and freedom
are completely intertwined with the supreme court,” Naral’s
president, Mini Timmaraju, nsaid. “We’ve become really clear-eyed
that it’s not responsible for us to be an organization that promotes
and advocates for advancement of reproductive freedom without engaging
seriously in discussions around the court.”

Naral was one of dozens of groups to sign on to the “Just
Majority” project [[link removed]], which held events
across the country this spring to advocate for court reform. The
campaign included a diverse array of leaders from across the
progressive movement, including racial justice organizations such as
Color of Change and gun safety groups like Newtown Action Alliance.

“We have to start coming to terms with just how much of a democracy
we still don’t have,” said Rashad Robinson, president of Color of
Change. “We have an unelected, unaccountable, corrupt body of people
that stand in the way of democracy, stand in the way of justice and
stand in the way of the will of the people.”

To advance their court reform efforts, groups like Demand Justice
followed the playbook of activists who lobbied against the Senate
filibuster. By convincing more progressive groups to sign on to the
campaign, court reform advocates have been able to persuade more
Democratic lawmakers as well.

Russ Feingold, a former Democratic senator of Wisconsin who served on
the judiciary committee, counts himself among the converted. Feingold,
now the president of the American Constitution Society, said he was
uncomfortable with the idea of term limits or court expansion as
recently as a couple of years ago.

He said: “People who have been much more cautious about this in the
past have come to the conclusion that, if you simply allow this kind
of a situation to continue for the next 20 years or so, with justices
who are very ideological, very political and also in some cases
unethical, then you are allowing a whole generation or more to be
locked away from having a legitimate impact on the law.”

Abortion rights activists and counter-protesters outside the supreme
court in June. Photograph: Elizabeth Frantz/Reuters

Some of Feingold’s former congressional colleagues have adopted the
same mindset. In the House, Johnson has introduced a suite of bills
aimed at overhauling the court through adopting a robust code of
ethics, establishing term limits and adding four justices to the
bench. One of Johnson’s progressive colleagues, congressman Ro
Khanna of California, reintroduced his own term limit proposal last
week in response to the dismantling of Biden’s student debt relief
program.

Asked about the possibility of expanding the court, Khanna told the
Guardian
[[link removed]]:
“I think everything has to be on the table, but I think the supreme
court term limits is the most likely and where we should focus our
energy.”

But Johnson, like Fallon, takes an “all of the above” approach to
reforming the court. “We need to do both,” Johnson said. “We
need to unpack this court, and we need to expand this court because
that will help us right now.”

Even as more Democratic lawmakers have endorsed court reform, the
leader of their party has remained notably quiet. During the 2020
campaign, Biden shied away from backing court expansion, and
progressive activists viewed
[[link removed]] his
formation of the commission to study reform proposals as a “punt”.

We need to unpack this court, and we need to expand this court

Congressman Hank Johnson

Still, even a longtime institutionalist like Biden has had his faith
in the court tested. After the conservative majority issued its
decision ending affirmative action, Biden described the current court
as “not normal”. He later told MSNBC that this court has “done
more to unravel basic rights and basic decisions than any court in
recent history”.

Fallon believes the president will be “the last domino to fall” in
backing court reform. But Fallon predicted Biden’s endorsement of
court reform will become “inevitable” in response to growing
public outrage

“You can’t hide your head in the sand,” Feingold said. “When
the court’s been stolen, when it’s been politicized, when it has
the worst ethics reputation it’s had in memory, then unusual
measures have to be taken – not to recapture the court for the other
side of the political agenda, but to restore the legitimacy of the
court.”

_JOAN E GREVE is a senior political reporter for Guardian US, based in
Washington. Follow her on Twitter [[link removed]]_

_ED PILKINGTON is chief reporter for Guardian US. He is the author of
Beyond the Mother Country. Twitter @edpilkington
[[link removed]]. Click here
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Ed's public key_

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* U.S. Supreme Court
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* democracy
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* justice
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* term limits
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* Court Packing
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* ethics
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* Politics
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