The United States Supreme Court, the highest body in the federal judiciary, was originally conceived as a purely apolitical institution, founded with the sole purpose of interpreting the law without bias and preconceived ideologies; yet, with a conservative supermajority of 6-3, the court is more polarized and political and interventionist than ever. As part of my final project for my U.S. History course, I was assigned the task of studying the Supreme Court, dissecting where its problems first arose and coming up with potential solutions for its flaws and dysfunction.
The conservative shift in the court began in 2015 when Mitch McConnell’s Republican-controlled Senate refused to proceed with confirmation hearings for President Barack Obama’s nominee to replace Justice Antonin Scalia. McConnell argued that, since the opening had occurred during Obama’s final year in office, the seat should be filled by the next president. (He would later contradict himself by rushing the confirmation hearings of Amy Coney Barett, whom President Donald Trump nominated only a few months before the 2020 elections.) President Trump would go on to select Neil Gorsuch to replace Scalia, as well as two additional justices across his four years in office — whereas Obama selected only two in eight years — shaping the future of the American judiciary in one of its most important and turbulent eras. This conservative swing has already led to several severe long-term consequences for which the court has been highly scrutinized. One such case was its highly controversial decision to overturn Roe v. Wade, the landmark ruling that made abortion a federal right, last June.
These developments have given rise to many doubts and questions as to the legitimacy of the Supreme Court. In fact, a recent Gallup poll showed that Americans’ trust in the Supreme Court is at an all-time low, with only 47% of people stating they have “a great deal” or “a fair amount” of trust in the judicial system, a twenty-point drop from two years ago. An additional poll showed that a record-high 42% of U.S. adults think the court has become too conservative.
Given this information, I believe that it is time for substantial reform. Specifically, I outlined three changes that would help restore justice to the nation’s highest court.
First, to restore balance to the court by expanding it to fifteen judges. With only nine judges on the bench, each individual member holds an exorbitant amount of power, as a single justice’s personal opinions and biases can impact generations to come. Expanding the court would reduce the impact of each individual justice on the bench, while also increasing diversity of thought. As for implementation, a fair and nonpartisan solution would be to add new justices gradually: two nominations for each president over the course of three presidencies. This process ensures that the Supreme Court remains continuously operational, with an odd number of justices on the court at all times, and accomplishes expansion without packing the court with judges of a particular political orientation by having them all nominated by one president.
Second, to depoliticize the court by implementing term limits. It is engraved into our national identity that no person is entitled to maintain a position of power for their whole life, and with Supreme Court justices being more powerful than ever, it is senseless that they are not subject to term limits. Under my proposal, justices would serve initial terms of six years on the court, after which they would be given the opportunity to be reconfirmed by the Senate for an additional term. At the conclusion of their twelve years in office, they would step down.
The beauty of the Constitution is its ineradicable insistence upon providing checks and balances on all branches of government; yet, there appear to be no such checks and balances on Supreme Court justices, some of the most influential people in the world. This new system guarantees that justices who do not properly do their jobs, either because they fail to support their rulings and dissents or because they are excessively motivated by personal beliefs, are penalized for their decisions. It would also incorporate new and diverse ideas into the court over time, a sharp contrast to our current system, which stubbornly sticks with one method of thinking for up to forty or more years.
Third, to modify the process by which judges are confirmed. Under our current system, only a simple majority of fifty-one senators out of 100 are required to confirm a justice. This has led to alarming levels of politicization, with many recent nominees being confirmed almost entirely along party lines. For instance, Justice Amy Coney Barrett, who is considered one of the most conservative members of the court’s staunch constitutionalist bloc, was confirmed by a vote of 52-48, with all Democrats voting in opposition. Why should a candidate over whom barely fifty people can agree be granted a lifetime guarantee of power? A two-thirds threshold ensures that only moderate, compromise candidates are nominated to the court — not radical constitutionalists or extreme liberals.
A common argument against this proposal is that it is impractical, as the famously obstinate Senate will have trouble uniting over one candidate. I would argue that this is not the case at all, as some of the most moderate and impartial justices in history have been confirmed by votes of sixty-six votes and above. For example, Justices Anthony Kennedy and David Souter, the longtime “swing votes” of the court, were confirmed unanimously. Furthermore, Justice Ruth Bader Ginsburg, who was widely acknowledged as one of the most impactful justices to ever serve on the bench, was confirmed by a wide margin of 96-3. The smoothness by which these justices were confirmed reflects a shared respect for their strong judicial philosophies and willingness to work with the opposing side. The more justices like Kennedy, Souter and Ginsburg that serve on the court, the better — and a ⅔ majority requirement is the way to do it.
There are even countless more ameliorations that would have a profound impact on the Supreme Court, such as expanding diversity in the judiciary over time by implementing diversification initiatives in law schools and federal courts, constructing a binding code of ethics to which all justices must swear an oath to adhere, and adopting transparency measures such as live-streaming or telecasting of Supreme Court hearings so that the public is better informed as to the happenings of the court.
These reforms would substantially benefit the future of our nation’s judiciary and restore trust amongst the American populace in the Supreme Court. It’s about time politicians begin to take them seriously.
