Congress needs to modernize the Supreme Court and bring it into the 21st century
In the last four years, my organization, Public Justice, has won three victories at the U.S. Supreme Court. Two of those victories were unanimous, and two of them were written by justices who had been nominated by Republican presidents. So one might think, given the court’s recent tendency to side with us in important cases, that everything is just fine. If so, you’d be wrong.
Instead, our view is that the nation’s highest court has veered off the rails in troubling and extreme ways. Far from acting in a restrained, careful way, the court has recently issued drastic and extreme opinions that are harmful to American society. In the Dobbs v. Jackson Women’s Health Organization decision, the court overturned Roe v. Wade, eliminating the constitutional protection of reproductive freedoms, a fundamental human right that had been a settled precedent for nearly 50 years. The court also took an extreme and ahistorical view of the Second Amendment, not only striking down a commonsense law aimed at reducing gun violence, but also threatening to strike down innumerable other state laws. And the Court invented a new doctrine (not based in any serious reading of the text of the Constitution) sharply limiting the ability of the federal government to protect the environment, address the climate change crisis or limit pollution. And this builds upon other decisions in recent years that undermine democracy, such as Citizens United v FEC (which paved the way for billionaires to spend far more of their money on elections, multiplying their power) and Shelby County v. Holder (where the court greatly undermined the Voting Rights Act). And the list goes on.
With half of the members of the extreme right supermajority on the Supreme Court having been nominated by a president who had lost the popular vote by 2.7 million votes and confirmed by senators who represent well less than half of the voters in the country, the court’s recent decisions move our country perilously close to minority rule. Each of the extreme decisions described above is badly out of touch with the views of the majority of the American people, and this fact is reflected in the court’s plummeting public approval rating.
And they’re clearly not done yet. At least one justice has called for wiping away the court’s precedents protecting marriage equality. The court has taken a case which raises the possibility that a heavily gerrymandered state legislature could overturn a presidential election in which a candidate the state legislative majority disfavors wins the clear majority of the votes. Such a decision would set up the very real possibility that the court will pursue even more extreme anti-democratic outcomes. For many years, “conservatives” spoke of the importance of the Supreme Court acting with restraint in the area of constitutional law. There was talk about the importance of respecting the court’s own precedent, narrowly deciding cases based upon the precise issues set forth, and not carving out legal positions that were far past the views and mood of the public. All of those principles have been disregarded in the court’s recent maximalist decisions, which have dramatically unsettled America’s legal and political systems.
It is now clear that the court badly needs reforming and modernizing. That’s why we at Public Justice are calling on Congress to take action. First, the court should be expanded to 13 justices. And second, term limits should be implemented, capping service at a maximum of 18 years.
The current line-up of nine justices is no magic number, and is not required by the Constitution. In fact, for many years, the number has waxed and waned with the nation’s needs. First comprised of just six justices, Congress has changed that number six times over the years, from as few as five to as many as ten. The current panel of nine was established in 1869 to reflect the nine circuit courts then below the Supreme Court and has not changed since, despite the sweeping changes our country has seen, and our legal system has been asked to evaluate, in the 153 years since. We believe increasing that number to 13 is consistent with the founding philosophy of the court, as it reflects the 13 federal appellate courts that now sit below the Supreme Court. And as further proof that the current number of nine is not magic, it’s worth noting that Sen. Mitch McConnell (R-Ky.) effectively reduced the size of the court to eight for the final year of the Obama administration.
Expanding the court should not be the end of Congress’s work to modernize our judicial system, however. Implementing term limits for justices would help ensure an ever-evolving panel of justices that will, presumably, more accurately reflect the realities of our nation and more fully understand the implications of the court’s actions. In the past, justices have seemed to struggle to understand such basic modern concepts as text messaging, social media and other modern-day devices and issues, despite being asked to make weighty and consequential decisions about them. Term limits would also help address the growing problem of justice being held as a political prisoner based on who happens to be president when a sitting justice decides to retire or dies. Absent death, justices increasingly step down when they believe a president who shares their philosophy will nominate their replacement. That hardly helps keep the court above the political fray; indeed, it drops our most important legal body right in the middle of political hurricanes. That was never meant to be the case.
Like our Constitution, our country’s founders never intended for our courts to be stuck in the distant past. Instead, the framers envisioned a vibrant democracy that would seize the possibilities of the present, govern for the good of the time and keep pace with the evolution of the country and the world. A 153-year-old model cannot do that, and what seemed to the powerful to be good for 1869 is most certainly not the answer for the very different America of 2022.
For all of these reasons, Congress and the president should embrace this opportunity to bring our courts into the 21st century and stop the politically motivated assault on our democracy that is, sadly, now too often emanating from our highest court. Doing so will not only rebuild and preserve faith in our justice system but also ensure we have a judiciary for our times, and not a system of injustice predicated on 18th century ideas.
Paul Bland is executive director of the group Public Justice.