The Most Likely Avenue for Supreme Court Reform

Supreme Court reform is all the rage among Democratic leaders in Washington. For decades, with few if notable exceptions, these politicians stood mutely impotent in the face of ultraconservative Republican-appointed justices incinerating hard-won, long-entrenched constitutional and statutory foundations of liberal governance. At last, it appears that they have taken note of the destruction. What’s more, they have decided that a package of enactments to reform the court is their answer.That liberal leaders have woken up to the need to do something is a good thing, however long in coming. But whether proposing legislation under the banner of “reform” is the right thing is another question. Indeed, the abrupt conversion of ordinarily cautious figures like House Minority Leader Hakeem Jeffries to unspecified “dramatic” reform could be a diversion, hoisted to persuade frustrated constituents that their leaders are finally up for the transformative change they crave—all while those leaders still shrink from tackling the essential turnabout prerequisite to any viable strategy for regaining traction in the ongoing war over the Constitution and the courts.That prerequisite—what Dems and liberals need, first, last, and foremost—is a politically marketable vision of how the actions and agenda of this rogue band of justices has sabotaged the material interests and aspirations of middle- and working-class American families and individuals. Moreover, the illumination of how the agenda of the conservative bloc unlawfully flouts prized statutory and constitutional safeguards—and how its warped vision conflicts with the designs of the Framers who crafted those laws and provisions—is paramount.Without that undergirding, any reform proposals Democrat leaders assemble will be dismissed—including by many Democratic constituents—as a partisan gimmick. If that perception takes hold, the Supreme Court reform boomlet will likely lose political momentum and fizzle out entirely.Earlier, I wrote that the right-wing justices will be wary of reform proposals and may temper their reactionary ambitions—but only if and as long as those initiatives are politically credible. If Supreme Court reform is unmasked as a political paper tiger, those justices will pounce, emboldened that they can get away with whatever their hard-right political-ideological agenda dictates. Indeed, the evidence of the last few terms indicates that this perverse boomerang has already occurred. Contrast the court’s 2022–23 term, when the conservative justices’ sharp zigs to the left shocked court-watchers, with their zags to the far right during their most recent term, three short years later. Over the course of the 2022–23 term (among other surprises), the justices rebuffed right-wing activists’ invitations to emasculate long-standing voting safeguards, refusing to gut fundamental provisions of the 1965 Voting Rights Act and to embrace an antidemocratic doctrinal theory that could have empowered state legislatures, not voters, to dictate election results. The justices similarly rejected a radical concept that would have materially furthered a reactionary project touted by all six of the justices on the right—dismantling the federal “administrative state”—by dismissing a suit aimed at eliminating Congress’s authority to tie regulatory strings to federal funding grants.But during this most recent term, the right-wing justices turned those barely three-year-old left-leaning rulings on their heads. Shedding Chief Justice John Roberts’s 2022 praise for the VRA’s “stringent,” explicitly “race-conscious” safeguards as “the most successful civil rights statute in the history of the nation,” Roberts and his colleagues returned to the form of a decades-long prior record redolent with hostility to the VRA. As election law expert Richard Hasen pointed out, in decisions in April and May 2026, the court’s entire six-justice ultraconservative bloc parroted “the rationale of Justice Samuel Alito’s dissent” to the chief’s 2023 invalidation of racially discriminatory Alabama congressional districts. As Hasen noted, the court’s 2026 swerve brought “back the requirement that minority voters prove discriminatory intent—in contravention of Section 2’s text, congressional intent, and common sense.”In a less-noticed but equally cataclysmic and a-textual 2026 volte-face, the six-justice bloc on the court’s right shredded a three-year-old 7–2 decision, in which four of them (Roberts, Gorsuch, Kavanaugh, and Barrett) had joined, upholding Congress’s long-standing broad authority to tie conditions to federal funding grants. This June, those four conservatives flipped, now echoing Justices Alito’s and Thomas’s dissents from their prior ruling. The new decision embraces a head-scratcher of a “theory” that a federal law implementing Congress’s constitutionally specified authority is somehow not a law at all but a mere contract offer to potential recipients of federal largesse. Thus, the decision illogically held, Congress cannot constitutionally empower individuals to sue state agencies or officials that violate conditions prescribed in such laws. This effectively stripped Congress of its only realistically effective tool to ensure that those conditions are not empty paper promises. In short, liberal leaders have ample evidence for their diagnosis. As Senate Minority Leader Chuck Schumer noted, “The Supreme Court has become a morass, both ethically and substantively.” Schumer’s colleague California Senator Adam Schiff referred to the high court as “a partisan and retrograde institution.” Jamie Raskin, the ranking member of the House Judiciary Committee, accused the Roberts court of returning “to the historic baseline of political white supremacy.” Due to its evisceration of the Voting Rights Act, Raskin observed that “by 2028, we will probably see an all-white congressional delegation from the deep South.”But getting right how far the ultraconservative bloc has gone off the rails does not prove that any specific reform measures or centering the “Supreme Court reform” label is the right strategy to get the court back on track.To merit liberals’ investing energy and resources in the heavy political lift required for any legislative initiative, such an undertaking needs to meet three criteria. First, the proposal must be feasible: There must be a credible path to enactment, however challenging or long-term. Next, it should be of some benefit to liberals’ own interests, policy goals, values, or political infrastructure. Finally, it must benefit the public interest—in this case, it must improve the Supreme Court’s capacity to perform its constitutional roles of adjudicating alleged governmental incursions on individual and minority rights; responding to claims that Congress, the executive branch, or state governments have strayed beyond their constitutionally prescribed missions; and to uphold the rule of law.Those criteria narrow the options for would-be Supreme Court reformers. To begin with, any proposal requiring a constitutional amendment plainly flunks the feasibility test. Without a massive, currently unforeseeable mobilization of support reaching well rightward beyond Democratic constituencies, this isn’t going to happen. That means a much-touted reform idea—replacing life tenure with term limits for justices or for federal judges at all levels—is off the table.The above conclusion seems unavoidable, despite work-arounds offered by term limit advocates. In July of this year, a cadre of Democrat senators led by Rhode Island’s Sheldon Whitehouse introduced a bill that would establish by statute prescribing “18-year term limits and regularized appointments for Supreme Court justices.” “Under the legislation,” Whitehouse explained, “a new justice would take the bench every two years and spend 18 years participating in all Supreme Court cases,” after which he or she, though retaining life tenure, would be pushed upstairs—elevated to “senior status” and limited to innocuous duties not including hearing cases that reach the court through appellate review.To be sure, enactment of such a law might be plausible if in 2028 Democrats capture control of both houses of Congress and the White House and a majority of Senate Democrats vote to dispense with the filibuster. But the prospects for any such law surviving a constitutional challenge in this Supreme Court are dim at best. Reformers might expect the justices would be loath to brook the broad public majorities supportive of term limits for Supreme Court justices. But, more likely, current support for term limits among Republican voters will collapse, once they are exposed to criticisms leveled by their leaders. In that event, the conservative justices will feel free to vote their druthers, confident that quashing term limit legislation will stick. Alongside term limits, another reform proposal popular among Democratic leaders is “court expansion,” skewered by its opponents as “court-packing.” The statutorily prescribed number of slots for justices has remained at nine since 1869, notably including in 1937, when President Franklin D. Roosevelt failed to gain enactment of a bill authorizing addition of one new justice for every incumbent over the age of 70. Today, House Democrats appear to be coalescing behind a proposal to increase the number of seats on the court to 13, to match the number of federal circuit courts of appeal. At the House Judiciary Committee’s May 21 hearing, Jamie Raskin spelled out a commonsense case for that number:We got 13 circuits, but we only have nine justices. So … for entire federal regions, four federal circuits will be left out completely.… Worse [today] we’ve got five justices from New York City alone, one for each borough. But you’re telling a majority of the people who live in a majority of the states that they can’t find anybody qualified to serve on the Supreme Court.The Constitution is silent on the size of the Supreme Court, and before 1869, the number of slots fluctuated frequently, for precisely the kind of purely partisan or ideological motivations that opponents would seek to discredit in any such contemporary court expansion proposal. So if Democrats score a trifecta in 2028, and vote out the filibuster, an expansion bill such as Raskin’s would surely pass constitutional muster and, hence, the feasibility hurdle.But the tougher questions court expansion proposals must face involve the other two essential prerequisites to liberal embrace: Will such a measure, if it becomes law, deliver net benefits to Democrats and liberals? And will it serve the public interest? For both questions, court expansion is problematic. The reason for this is no secret. As soon as Republicans regain the tripartite control of the federal branches they enjoy today, they will add enough seats to give their appointees a majority, canceling any advantage for Democrats and liberal justices. Hence, creating new court slots by statute makes partisan sense only if Democrats are confident that they can retain control of the government for the foreseeable future, or at least remain in a position to block Republican legislation to regain their court majority. Furthermore, the partisan tit for tat will ultimately trivialize the court’s stature—and not only liberals but the nation will lose a respected bastion for protecting liberal minority rights, limiting executive and congressional lawlessness, and upholding the rule of law.Indeed, the Democrats’ sole witness at the May 21 hearing, Harvard Law professor Nikolas Bowie, told the committee that it should thus sideline altogether the Supreme Court and the Article 3 judicial branch as power players in national law and policymaking. Bowie recommended stripping federal courts of the core power they have held since 1803 to declare federal laws violative of the Constitution. Per Bowie’s urgings: “When the court defies federal law by declaring it unconstitutional—by announcing that the views of five or six unelected lawyers are superior to and beyond the reach of every official 340 million Americans have the power to elect—the court disrespects your oaths and undermines the possibility of republican governance itself.”But kneecapping the Supreme Court’s ability to check overreach by the political branches disserves fundamental interests of liberals and of the public. Zealots like Bowie, who fixate on the court’s admittedly pro-business, antisocial reform tilt through much of its history, should have been cautioned just days ago, on Friday, September 14, to acknowledge a broader picture. That evening, a 7–2 Supreme Court majority, including three Trump appointees, upheld decisions by lower court judges, likewise including Trump appointees, that enjoined Trump’s scheme to conscript the United States Postal Service to block millions of mail ballots this November. As underscored by this and other court-aborted Trumpist assaults on constitutional democracy, liberal governance requires an independent judiciary armed with the power to declare “what the law is,” as Chief Justice John Marshall indelibly wrote two centuries ago. At this juncture, liberal leaders should think twice before squandering time and political capital on magic-bullet institutional makeover solutions—including Supreme Court expansion and term limits—that are either unenactable or, if enacted, would not reliably benefit liberal interests, or both. Since such proposals will be perceived as fronting the cause of a judiciary more congenial to liberals, they will stagnate, unless liberals first market a persuasive account of how this radical right judiciary has and continues to upend long-enshrined, essential legal guarantees of ordinary Americans’ basic needs and aspirations, and lay out a credible roadmap of how liberal redirection of the courts will—lawfully—rectify that catastrophic upheaval.As it happens, there is one prominent reform idea that is worth centering in this effort. That reform project is enacting a sensible but enforceable code of ethics for Supreme Court justices. Such a proposal is eminently defensible on the merits. Supreme Court justices are the only officials in the federal government, including all lower court federal judges, who are not subject to a meaningful code of conduct. Substantial popular majorities, including multitudes of Republicans, support legislation to plug that gap. Most important, at the present moment, spotlighting the need for meaningful ethics strictures will provide the first step reformers most need: an effective platform for amplifying the real-world devastation from and nonexistent legal basis for what President Ronald Reagan’s solicitor general, the late Charles Fried, labeled the right-wing justices’ “tak[ing] a constitutional wrecking ball to generations of Supreme Court doctrine.”Encouragingly, Supreme Court ethics legislation appears to be on the table. Such legislation has repeatedly been introduced and refined over the past several years, spurred by a persistent think tank named “Fix the Court,” led by CEO Gabe Roth. Very recently, leaders on both ends of the Capitol have teed up tweaked versions, ripe for hearings and floor debate. On July 23, Connecticut Senator Chris Murphy introduced an updated version of his Supreme Court Ethics Act, with 14 co-signatories, including ranking Judiciary member Dick Durbin, Democratic Senatorial Campaign Committee Chair Chris Van Hollen, Democratic Senate Steering and Policy Committee Chair Amy Klobuchar, and Senator Adam Schiff, the former House lead impeachment manager. Representative Hank Johnson, ranking member of the House Judiciary Courts Subcommittee, has introduced companion House Supreme Court Ethics Act bills in prior Congresses, and is expected to repeat.Republican legislators inevitably dismiss all such ethics proposals as partisan schemes—though in not so distant years past, Supreme Court ethics reform garnered bipartisan support from leading Republican politicians, academics, and appointees. Potentially more telling, reforms along the lines of the Murphy-Johnson bill—(as well as kindred proposals from other Democrats, such as Senator Sheldon Whitehouse) find favor with rank-and-file Republicans.On September 17, a Marquette Law School poll reported that the proposition “Enforce a strict ethics code for the justices” was approved by 91 percent of Democrat respondents—and an identical 91 percent of Republicans. By contrast, “Increase the number of justices” produced an expectable partisan split: Democrats voted 68 percent for, 32 percent against, whereas Republicans were 65 percent against, 35 percent for. Given this extraordinary bipartisan support, at least some congressional Republicans might mute opposition to a bill like Murphy-Johnson.The current Murphy-Johnson iteration effectively closes the most critical—yawning—gaps in existing ethics constraints on the justices. At the same time, the bill eliminates or adjusts earlier provisions criticized by Chief Justice Roberts and respected academic experts, such as law professor Amanda Frost, for testing constitutional separation-of-powers boundaries and unnecessarily burdening both the court and litigants before it. Grudgingly acknowledging that he couldn’t beat something with nothing, Roberts in 2023 herded his cats to agree on a “voluntary” ethics code, though one quickly labeled more loophole than law. Murphy-Johnson closes the most damaging of those loopholes. More important, it also puts teeth in a federal ethics statute applicable to all federal judges and “justices,” on the books since 1948. This law, Section 455 of the federal criminal code (widely known as “Section 455”) is strongly worded but has been ignored, especially by the Supreme Court’s nine members.Section 455 expressly mandates that federal judges and justices recuse from “any proceeding in which his impartiality might reasonably be questioned,” and, more specifically, recuse if “the judge or the judge’s spouse … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” Those criteria should, for example, require Justice Clarence Thomas’s recusal from cases over which he notoriously presided, which potentially implicated his wife Ginni’s involvement in promoting the overturning of the 2020 election.But Thomas, Alito, and other justices, including Democratic appointees, treat Section 455 as a ghost law. They feel free to get away with this misbehavior because of two gaping deficiencies in the ethics legal architecture pertinent to the court. The first gap is the absence from its terms of any mechanism for implementing or enforcing its substantive guarantees. The second deficiency is that resolution of specific questions about justices’ compliance with Section 455, or even with their own (inadequate) 2023 code of conduct, is left entirely to the individual justices themselves, with no accountability or transparency to the court as a whole, let alone to any individual or entity outside the justices’ control.The Murphy-Johnson Supreme Court Ethics Act addresses these two fatal flaws, meaningfully but prudently. Its key provisions require the Supreme Court itself to “issue a code of conduct” applicable to each justice that “at a minimum incorporates the requirements of Section 455.” For implementation and enforcement, the bill requires the court to appoint an “Ethics Investigations Counsel”—roughly similar to inspectors general for executive agencies—“who shall adopt rules providing for the enforcement of the code of conduct.” The counsel is given a renewable term of four years, and is made removable by the court (only) for cause—traditionally a high bar. Further, the bill authorizes individual justices to rule on recusal motions by litigants but requires public disclosure by the justice of the “reasons for the denial of the motion.”Apart from the merits, and even if Republican legislators double down on their lockstep opposition, vetting such commonsense ethics safeguards in committee, on the House and Senate floor, and elsewhere, will provide ample opportunity to galvanize media and public understanding of, and opposition to, the justices’ reactionary, law-defying actions and agenda that cry out for rectification. This path, at worst, leads to an opportunity to consistently call out the Roberts court’s most egregious misdeeds, paving the way for higher public support for reforms of all stripes—thus ensuring that the momentum behind change won’t burn out at the first obstacle.