Jack Smith’s brief in the Trump prosecution proves the need for Supreme Court reform.

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Last week, Special Counsel Jack Smith submitted a 165-page brief to Judge Tanya Chutkan in the prosecution of Donald Trump for trying to overthrow the Constitution’s peaceful transfer of power.

The filing shows how outrageous it was for the Supreme Court to issue Trump v. U.S. just four months ago. That ruling conferred vast immunity on presidents who break the law, so long as they do so as part of “official” acts.

When the justices stalled the arguments and delayed the ruling until the last day of the term, then sent fuzzy instructions to the trial judge, they ensured that Trump would not face a criminal jury before the election. Voters were deprived of vital information too. This was a judicially executed cover-up.

As the Supreme Court term starts this week, the most important cases may well be those that have not yet even been added to the docket. The justices will likely rule on election cases. And they may hear appeals in the Trump prosecution, offering them a chance to compound the damage already done. All of which makes clear, yet again, why the Supreme Court itself needs reform.

According to Smith’s filing, Trump knew he had lost the election. His aides and his vice president told him so repeatedly. He reportedly told

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family members, “It doesn’t matter if you win or lose. You have to fight like hell.” His schemes to overturn the voters’ will were a direct and conscious effort to stay in the White House for another term.

Sen. Tom Cotton (R-AR) called

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the filing “a temper tantrum from a deranged fanatic.” (He meant Smith, by the way, not Trump.) That’s wrong. By stalling the case, Trump’s lawyers and the Supreme Court pushed these proceedings into the weeks before the election. Nothing in Justice Department rules or the criminal law stops a prosecutor from making a filing like this, as top Watergate prosecutor Phil Lacovara and others have explained. As for the complaint that this sworn testimony has not been subjected to the rigors of a trial, with the defendant able to rebut the damning evidence, well, yes — all the more reason for a speedy and public trial.

All of this underscores why term limits for the Supreme Court make sense. The Court wields vast power with minimal accountability. Its unelected justices, serving for life, can grow ever more distant from the country they help to govern. Justices easily become out of touch, captured by ideological special interest groups, or heedless of ethics rules.

Few reforms have as much bipartisan support. The most recent Fox News poll found that 78 percent of the public supports an 18-year term limit for justices, including strong majorities of Republicans and independents. Prominent conservatives, such as the cofounder of the Federalist Society Steven Calabresi and even Chief Justice John Roberts, have backed term limits in the past. Now that the idea has gained new momentum with endorsement by President Biden and Vice President Harris, critics have begun to assail it. They call it (wrongly) a power grab. They suggest it is risky.

A new analysis by the Brennan Center

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shows that, in fact, limited terms on supreme courts is the norm in the United States. Mike Milov-Cordoba shows that justices on every state supreme court but one either serve fixed terms or face a mandatory retirement age. Just 1 percent of state supreme court justices — the five from tiny Rhode Island — serve out lifetime appointments like their counterparts on the U.S. Supreme Court. These limits keep justices in touch with the people. In modern times, state supreme court justices have served on average for 13 years, just half of the ludicrous 26 years of service for the average U.S. Supreme Court justice.

Arguments for Supreme Court term limits and against presidential immunity flow from a common source: the need to ensure accountability for those in power. That is a core American value, deeply embedded in our constitutional system. It is, at its heart, a conservative value, not a radical one.

In 1783, a victorious General George Washington stepped away from power after leading the American Revolution. “If he does that,” said King George III, “he will be the greatest man in the world.” Later, after two terms as president, Washington again stepped away, setting a standard so sacrosanct that it was later enshrined in the Constitution by amendment. His actions helped write into the country’s operating code the idea that nobody should hold too much power for too long.

“Greatest man in the world”? We’d settle for a president who obeys the law — and a Supreme Court that upholds the Constitution.

Roadmap to the Count

Election officials’ work continues long after the polls close on Election Day. As a newly updated Brennan Center explainer

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details, counting every eligible vote involves a complex, multistep process that takes time. In the years since the 2020 election, several states have implemented changes that could speed up or slow down the process of getting to final results. Regardless of how long it takes, Derek Tisler writes, voters should trust that “election officials will prioritize accuracy — not speed — above all else.” Read more

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What the Adams Indictment Means for Public Financing

New York City’s public campaign financing program has been praised for countering the influence of big money in politics, making candidates more accountable to everyday voters. While recent allegations involving Mayor Eric Adams highlight potential misuse of the system, public financing programs have strict rules in place to both deter fraud and catch it when it occurs. As Joanna Zdanys and Marina Pino explain in a new piece, strengthening oversight and tightening rules around eligibility and audits could help safeguard the program's integrity moving forward. Read more

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Keeping Domestic Deployment in Check

The Posse Comitatus Act of 1878 is meant to restrict the use of federal troops in domestic law enforcement, serving as a vital safeguard for the public’s constitutional rights. But the law is riddled with exceptions and loopholes that give the president broad power to deploy the military as a domestic police force with little oversight, such as the Insurrection Act. As a result, the Posse Comitatus Act is upheld largely by tradition rather than legal strength. A new Brennan Center report calls on Congress to close these gaps in the law and strengthen protections against the misuse of military power on U.S. soil. Read more

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Election Administration in the Wake of Disaster

In the aftermath of Hurricane Helene, much of North Carolina is grappling with widespread destruction while also facing the challenge of running an election. Damaged infrastructure has left many without access to polling places, disrupted mail-in ballot systems, and left election staff in difficult positions. To ensure that all voters can cast their ballots, emergency steps are necessary, such as extending ballot deadlines, setting up absentee drop boxes, and expanding in-person voting options. “Even in the midst of such turmoil, ensuring that every citizen can exercise their fundamental right to vote is paramount,” Veronica Degraffenreid and Kevin Morris write. Read more

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New Solutions for a Transformed Court

Support for Supreme Court term limits is growing as a way to rein in the Court’s power and partisanship. But why is this idea only now gaining traction? In the latest installment of our new essay series

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examining the proposed reform, historian Rachel Shelden explains that term limits weren’t a practical solution in the past because they didn’t address the core concerns of earlier eras. “Understanding this history means recognizing how different our current judicial system is from the era of the founders and why different solutions might be necessary now with a Court that has accumulated more power than ever before,” she writes. Read more

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Originalism in State Courts

In recent years, the U.S. Supreme Court has used “history and tradition” to radically reshape American law. While some state judges have adopted this originalist approach, others are pushing back, arguing that originalism harms marginalized groups and relies on a distorted understanding of history. In a new piece for State Court Report, Chihiro Isozaki examines these state-level critiques of originalism and the possibility that state courts could lead the way in developing fresh, more nuanced methods of constitutional interpretation. Read more

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PODCAST: What to Expect From the Supreme Court Term

Our latest episode is about what we can expect as the Supreme Court starts its new term. Cases including “ghost gun” regulation, prosecutorial misconduct, and federal agency powers are on the docket. Brennan Center experts explore the issues and discuss what can be done to shore up democracy. Listen on Spotify

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, Apple Podcasts

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, or your favorite podcast platform

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Coming Up

VIRTUAL EVENT: Latinos and the Far Right

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Thursday, October 10, 3–4 p.m. ET


A white supremacist who is a person of color seems like a contradiction. Yet recent years have brought to light unsettling examples, including an Afro-Latino leader of the Proud Boys and a Latino mass shooter with neo-Nazi sympathies. These men are among a small but growing number of Latinos who gravitate toward the far right and adopt radical views on race, Christian nationalism, and immigration. Join us for this virtual discussion about the complexities of the Latino community, which is growing in importance with each election. RSVP today

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Produced in partnership with Brennan en español



VIRTUAL EVENT: Promoting Justice and Public Safety Since the Pandemic

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Thursday, October 17, 3–4 p.m. ET



Crime has long been a political wedge issue used to stoke anxiety and stir division. Although the pandemic crime spike is receding, the politicians who fear-mongered about crime in 2020 continue to call for harsher punishments and the repeal of reforms. Join members of Law Enforcement Leaders

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as they discuss the effects of reforms, evidence-based solutions for reducing crime, and new strategies to lower recidivism rates and promote successful reentry into society. RSVP today

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Produced in partnership with Law Enforcement Leaders to Reduce Crime and Incarceration, a project of the Brennan Center

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Ames Grawert on politicians spreading false narratives about crime // STATELINE

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Michael Li on an impending Supreme Court decision on redistricting in Louisiana // NOLA

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Sean Morales-Doyle on the threat of the election denial movement in 2024 // LOS ANGELES TIMES

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Derek Tisler on strategies to increase transparency around the election process // COLORADO NEWSLINE

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Leah Tulin on a recent victory against a Texas voter suppression law // ETHNIC MEDIA SERVICES

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Daniel Weiner on Trump’s transactional approach to campaign fundraising // GUARDIAN

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