Supreme Court Reform

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This article was originally written in October of 2024.

In Federalist No. 78, Alexander Hamilton wrote that the judicial branch was to be the least powerful branch of government. Hamilton argued that "the judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever" (Hamilton, 1788). In the spirit of the rationale described by Hamilton, respect for the rule of law is vital to a healthy American legal system. 

Americans can disagree with many of the decisions of the current United States Supreme Court (as I often do), but they must be respected. Respect for the rule of law separates America from much of the world. Following the decision in Bush v. Gore, which resulted in George W. Bush winning the presidency, Americans did not respond by taking to the streets with violence. Rather, they accepted the decision of the Supreme Court even if they disagreed.

Continued respect for the rule of law is vital for the survival of American democracy. Therefore, it is important to understand that there is a legitimate difference between disagreeing with a Justice's jurisprudence and believing they act simply out of partisan motives. Each Justice has distinct legal philosophies, often leading to "unusual" outcomes. Last term, in the case of U.S. v. Rahimi, George W. Bush appointee Samuel Alito voted to uphold restrictions on gun ownership pursuant to domestic violence restraining orders as constitutional under the Second Amendment. At the same time, George H.W. Bush nominee Clarence Thomas dissented. Justice Amy Coney Barrett broke from the Court's other Republican appointees to dissent in the case of Fischer v. United States, which dealt with felony obstruction sentences for January 6th defendants. In the same case, Justice Ketanji Brown Jackson joined the other Republican-appointed justices in the majority (Shanmugam, 2024).

However, for the same reason that I believe the country must respect decisions made by the Supreme Court, reforms to the Court are necessary. The Court's decisions are enforced only through respect for the Court as an institution. The Court risks further delegitimization, at least in the eyes of the American people, if it falls too out of line with the beliefs of the American public. Polling shows that only 43% of Americans approve of the Supreme Court (Brenan, 2024). This low approval rating comes following the Court’s unpopular decision to overturn the constitutional right to an abortion and controversies related to multiple Justice’s behavior.  While that is higher than the current approval rating of the president and Congress, the Court does not have the power of the purse or the sword to enforce its decisions. 

Since respect is the Court's only mechanism of enforcement, reforms are needed to increase the Court's transparency and accountability. I will argue that the most necessary reforms to the Supreme Court are 18-year term limits, greater restrictions on gifts and outside income and requiring Justices to ride the Circuit again.

18-year Term Limits

Historically, the average Supreme Court Justice has served for 16 years. Today that is not the case. The recently retired Justices Anthony Kennedy and Stephen Breyer served for 30 and 27 years, respectively, while Justice Clarence Thomas has been on the Court for 32 years. As a result, the process of nominating and confirming Justices has reached a point of heightened political importance because a Justice can spend generations on the Court. Presidents are inclined to pick young Justices who they believe will be the most ideologically aligned with their own agenda and legacy. Historically, many of our nation's greatest Justices, such as Louis Brandeis and Oliver Wendell Holmes, were nominated in their late fifties or early sixties; today, such an age would be disqualifying. This system also results in Justices opting not to retire because the sitting president would nominate a successor of a different ideology. This system creates the risk of a Justice no longer fully able to carry out their job functions.

At the same time, the Senate has abdicated its responsibility of advice and consent for nominations. Senators either rubber-stamp or reject the nominee solely based on the party of the president who made the nomination (French, 2024). This is a far cry from the days when Antonin Scalia was confirmed with unanimous support, including from Ted Kennedy (D-MA), and Ruth Bader Ginsburg was confirmed by a 96-3 margin with support from Strom Thurmond (R-SC). Take, for example, the nominations of Neil Gorsuch and Ketanji Brown Jackson. Both were well-qualified candidates whose predecessors were nominated by presidents of the same political party. Yet, both nominees were only confirmed with the support of three senators from the opposing political party. Rather than trying to understand the nominee’s judicial philosophies, Senators use public hearings to ambush them or paint them as evil. Concurrently, the press often frames the nominees in a purely political light (Ordway, 2018). These occurrences add to the view that the Justices are just an extension of the political party of the nominating presidents and contribute to further erosion in public trust of the Supreme Court. 

Thankfully, there is a way to fix this problem: 18-year term limits for Supreme Court Justices. Each of the current nine Justices would be grandfathered into the plan, and term limits would apply only to their successors. If structured precisely, this plan would not require a constitutional amendment either. Instead, once a Justice's 18-year term limit expires, they would take "senior status" allowing them to continue serving in the spirit of lifelong tenure defined as "good behavior" under Article III of the Constitution. Senior status Justices would be able to sit on lower court cases (as retired Justices currently can do) but also sit on cases if there is a vacancy on the Court or an active Justice has recused themselves (Amar, 2021). 

Moreover, term limits would make the recusal process easier. Currently, Justices have a “duty to sit” on cases unless it is indisputable that they cannot be impartial. Last term, Samuel Alito faced calls to recuse himself from hearing January 6th related cases after his wife flew a flag with ties to the “Stop the Steal” movement outside of his home. Alito declined to recuse citing the “duty to sit.” Having an eight-member Court leaves open the possibility for a four-to-four tie and a legal dispute not being settled, so recusals are uncommon. However, this would no longer be the case with the ability for a “senior status” Justice to sit on a case. 

A president would be guaranteed two nominees per term, which would remove the arbitrary nature of the current nomination process; Donald Trump appointed three Justices over four years, while Barack Obama appointed only two Justices over eight years. 

These reforms would greatly reduce the partisan political fighting that arises when new Supreme Court Justices are nominated. The introduction of term limits and a senior status system would reduce the individual power of each Justice. Furthermore, it would encourage the most qualified Justices to be nominated. 

Cap on Gifts and Outside Income Accepted by Justices

While 18-year term limits would be the most beneficial reforms for the Supreme Court, other ethics reforms would help improve the standing of the nation's highest court. The ethical behavior of Justices has been in the news lately. During his tenure on the court, Clarence Thomas received millions of dollars in gifts from billionaire and Republican donor Harlan Crow. Ketanji Brown Jackson, likewise, received four gifted tickets from Beyonce to attend her concert. As part of a binding code of conduct, Congress should limit the number and value of gifts that can be accepted by Supreme Court Justices (Shanmugam, 2024). This should include ending the “personal hospitality clause,” which allows Justices to not disclose certain gifts if they are “received as personal hospitality of an individual” (Ahearn, 2023).

Additionally, Congress should implement a similar rule regulating the amount of yearly income a Justice can receive from book deals. While current federal laws restrict the amount of income a Justice can collect from outside sources, book deals are exempt. A number of Justices have recently signed lucrative book deals that provide them with millions of dollars in advanced royalties. These book deals amount to interest-free loans that are significantly larger than the Justice's current salaries because the publishers are unlikely to try to collect any unearned royalties (Blackman, 2024). Restricting Justices' ability to accept gifts and outside income would be a common-sense move to increase accountability to the Court.

Require Supreme Court Justices to Ride Circuit Again

At the nation's founding, Supreme Court Justices rode the circuit, meaning they would sit on different cases in courts nationwide. Once a defining factor of the Court, it should be brought back, at least on a limited basis (Amar, 2021).

Every Circuit Court that hears a case en banc – the whole court sits on the case, not just a handful of Judges – should have a member of the Supreme Court sitting on it. There are about 80 to 90 en banc cases heard nationwide per year. Under my reform plan, active Justices should sit on a minimum of one en banc circuit court case every year. Senior Supreme Court Justices would sit en banc in the other cases. 

This reform would take Supreme Court Justices out of the marble halls of the Court in Washington D.C. and require them to see legal problems on the ground. Additionally, this would strengthen the working relationship between Supreme Court Justices and lower court Judges, who can provide them with meaningful legal insights that they may not get from one of the other members of the Court.

Ultimately, common sense reforms are critical to improving public trust in the Supreme Court. Reforms strengthening the Court’s existing ethics guidelines such as term-limits, caps on gifts and outside income, and requiring Justices to ride the circuit are necessary to, once again, further restore faith in American rule of law.

References

Ahearn, Jennifer. “What Gifts Must Supreme Court Justices Disclose?” Brennan Center For Justice. Accessed October 20, 2024. https://www.brennancenter.org/our-work/research-reports/what-gifts-must-supreme-court-justices-disclose.

Amar, Akhil. “In Support of a Congressional Statute Establishing an Eighteen-Year Limit on Active Supreme Court Service, With Emeritus Status Thereafter and a Purely Prospective Phase- In.” Presidential Commission on the Supreme Court of the United States. Accessed October 12, 2024. https://www.whitehouse.gov/wp-content/uploads/2021/07/Amar-Testimony.pdf.

Blackman, Josh. “New Article: Bilateral Judicial Reform.” Reason. Accessed October 12, 2024. https://reason.com/volokh/2024/06/03/new-article-bilateral-judicial-reform/.

Brenan, Megan. “Approval of U.S. Supreme Court Stalled Near Historical Low.” Gallup. Accessed October 10, 2024. https://news.gallup.com/poll/647834/approval-supreme-court-stalled-near-historical-low.aspx.

French, David. “Supreme Court Reform is in the Air.” The New York Times. Accessed October 12, 2024. https://www.nytimes.com/2024/10/10/opinion/harris-supreme-court.html.

Hamilton, Alexander. “Federalist 78.” The National Constitution Center. Accessed October 10, 2024. https://constitutioncenter.org/the-constitution/historic-document-library/detail/alexander-hamilton-federalist-no-78-1788.

Ordway, Denise-Marie. “TV news coverage linked to diminished support for Supreme Court.” The Journalist’s Resource. Accessed October 20, 2024. https://journalistsresource.org/politics-and-government/supreme-court-tv-news-research/.

Shanmugam, Kannon. “The Legitimacy of the Supreme Court.” Duke Law School. Accessed October 10, 2024. https://prod-i.a.dj.com/public/resources/documents/Kannon_Shanmugam_Duke_2024_speechfin.pdf.