The Democrats Need to Think Bigger on Supreme Court Reform

Jurisprudence Think bigger. Photo illustration by Slate. Photos by Getty Images Plus. Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. Voters sent a resounding message last week, demanding real change and an end to the rampant abuse of power that has become all too commonplace from Donald Trump’s presidential administration. Americans are fed up with government institutions that serve the powerful while turning a blind eye to the struggles of the rest of us. While the new Congress will obviously focus on addressing affordability and executive corruption, it should also take the opportunity to tackle long-overdue reform of the Supreme Court. At first blush, Supreme Court reform might appear to be tangential to voters’ economic concerns, disgust at political corruption, and shock at attacks on the life and liberty of vulnerable individuals. But it is part of the same story of government institutions that have focused too intently on the needs of the powerful and seemed complacent in the face of rising authoritarianism, straying from the mission of constitutional democracy and securing liberty and equal rights for all of us. The story of the Supreme Court under the leadership of John Roberts is one power grab after another. In just the past few years, the conservative-dominated Supreme Court has eviscerated the Voting Rights Act, stripped away fundamental rights of bodily autonomy from millions of people, supercharged the rights of megabillionaires to spend vast sums to distort the electoral process, and invented new constitutional rules to immunize and abet presidential lawlessness, a permission slip that Trump has used to govern tyrannically. This term, the court’s conservative supermajority has shown no sign of slowing down, loading this term’s docket with cases seeking to further gut federal voting-rights laws, give religious schools a First Amendment right to discriminate with taxpayer funds, and strike down bans on possession of assault weapons. This Supreme Court only hears a tiny number of cases, many of which are chosen not to resolve conflicts in lower courts, but rather as vehicles to move the law far to the right. Meanwhile, year after year, the Roberts court bends over backward to rule in favor of big business interests at the expense of everyday Americans, robbing people of the ability to access justice and hold corporations accountable for misconduct. The Constitution gives Congress broad power to meet this moment. The Constitution establishes “one supreme Court” atop the federal judicial branch and provides that its judges “shall hold their offices during good behavior,” but says little else, leaving those details to be filled out by Congress. How many justices should serve on the Supreme Court? When should the court meet? How extensive should the court’s jurisdiction be? What procedures should the court follow in deciding cases? All these matters are left to Congress, which has the express power to enact “all Laws which shall be necessary and proper for carrying into Execution” all “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Constitution also gives Congress the power to regulate the court’s appellate jurisdiction, expressly authorizing “such Exceptions … as the Congress shall make.” In all these ways, the Constitution gives Congress an ongoing legislative role over the work and operation of the Supreme Court. And of course, Congress has the power to enact legislation that vindicates fundamental rights by creating substantive remedies and avenues for access to the courts. There is an incredibly rich history of Congress using these express powers to reform the Supreme Court. And we are already hearing calls for this new Congress to engage in Supreme Court reform. But it is important in this moment for Congress to think big about court reform, beyond adding seats on the bench or term limits—and history shows us why. Consider, for example, the judicial reforms of the Reconstruction era, when Congress repeatedly acted to reform a court that had disgraced itself with its horrific ruling in Dred Scott v. Sandford that Black people, even those living in freedom, were not citizens. During Reconstruction, Congress changed the size of the Supreme Court and cut back the Supreme Court’s jurisdiction when the court seemed poised to second-guess powers the Constitution gives exclusively to Congress. It also gave serious consideration to other structural reforms, such as requiring a supermajority vote by the justices to strike down a congressional act on constitutional grounds. However, the Reconstruction vision of court reform was even broader than this. During Reconstruction, Congress not only reshaped the Supreme Court, it also passed laws that expanded Americans’ ability to go into federal court to demand equality, defend liberty, and secure justice. Congress passed transformative federal statutes designed to give individuals the right to sue state and local officials in federal court to redress governmental abuses of power. Enacted as part of the Ku Klux Klan Act of 1871, the landmark statute now known as Section 1983 transformed constitutional litigation by opening the doors of federal courts to redress state violations of constitutional and other federal rights. As during Reconstruction, any plan of court reform should also be guided by the constitutional imperative of ensuring access to justice and accountability. For example, the past two years of abuse of power by the Trump administration has underscored a fundamental gap in federal law: Individuals victimized by federal abuse of power often have no mechanism to hold federal actors accountable for violating their constitutional rights. In Minneapolis, two American citizens were killed in broad daylight in front of cameras in what looked like assassinations and federal agencies refused any sort of proper investigation. The families of Alex Pretti and Renee Nicole Good are still awaiting justice, as are many others who have experienced violations at the hands of federal authorities in the past two years. The courts will not fix this problem on their own. In fact, the Supreme Court’s conservative supermajority has repeatedly refused to permit suits by aggrieved individuals against federal officers, no matter how egregious the constitutional violation. In the wake of killings and horrific violence meted out by ICE, Congress should close this gap and ensure that federal officers, whether employed by ICE or elsewhere, can be held accountable when they violate federally protected rights. This should be an easy fix. In Section 1983, Congress during Reconstruction opened the federal courts to redress violations of rights committed under color of state law. Congress could amend Section 1983’s right to sue to include violations committed under color of federal law as well by adding just two words to the statute. The Reconstruction Congress understood that a key part of court reform was ensuring access to justice and holding wrongdoers to account. The next Congress should follow this broad vision of court reform. Congress can and should expand mechanisms for protecting individual rights, fostering equality, and holding wrongdoers accountable, no matter how wealthy or powerful. Arguably, the most enduring legacy of previous attempts at court reform has been Section 1983. What legislation could this next Congress craft that will throw open the doors of justice and further secure constitutional rights of liberty and equality for the next century? This is not the time to think small—Americans have shown they are tired of the status quo and are eager for leaders who have the political courage to work for the common good. The calls for term limits, court expansion, a binding ethics code, and reforms to the emergency docket are a good start to the Supreme Court–reform conversation. But they should be a beginning, not an end. This new Congress should take up the mantle of the Reconstruction Congress and envision substantive solutions to the problems of justice our country continues to face. Congress Constitution Jurisprudence Senate Supreme Court John Roberts Judiciary 2026 Midterms