Amidst the U.S. Supreme Court’s repeated ethics controversies, historically low approval and shrinking number of decided cases, reform groups, elected officials and scholars alike have put forth a diverse array of proposals aimed at reforming the federal judiciary. From relatively minor institutional changes to large-scale structural overhauls, these reforms aim to bring transparency, ethical standards and accountability to the federal judiciary — from the lowest level all the way up to the nation’s highest court.
Changes to the Blue Slip Process
A blue slip is exactly how it sounds: it is a small, blue piece of paper, which is used by the Senate Judiciary Committee to gather senators’ thoughts on a judicial nominee from their home state. Home-state senators can either approve, reject or ignore a blue slip, which can result in the blockage of a nominee by a single senator. While blue slips are not binding nor are they required by the U.S. Constitution or federal law, they have become a key point of contention in recent years.
Some Democrats have argued that the blue slip process can be abused by Republicans for purely political reasons, with Republican Senators rejecting nominees from their home states solely because they disagree ideologically. In a letter to Sen. Dick Durbin (D-Ill.), the chair of the Senate Judiciary Committee, the Congressional Black Caucus (CBC) wrote that the process is “undermining efforts to diversify the judiciary, protect critical civil rights and liberties, and reestablish fair courts with ideological balance,” and described blue slips as an arcane tool for obstruction.
The CBC proposes a handful of reforms, including waiving the blue slip process for U.S. attorneys and marshals and requiring an explanation from senators who reject a nomination. Additional reforms — including ones proposed by a group of 33 pro-democracy, environmental and civil rights organizations — would require both home-state senators to return a negative blue slip in order for a nominee to be precluded (as opposed to one) and reinstitute a deadline for blue slips. There have also been calls for the outright abolishment of blue slips, with some pointing out the fact that Republicans eliminated the process for appellate judges under former President Donald Trump’s administration.
Data supports the claim that the slips have become a dangerous tool for blocking nominees. According to Bill Myers, an associate professor of political science at the University of Tampa, there are 18 judicial emergencies at federal courts, 13 of which come from just three states with two Republican senators: Florida, Louisiana and Texas. The Florida vacancies, for example, have been open for an average of nearly 700 days. These vacancies are a result of the blue slip system, and, as Myers noted in an email to Democracy Docket, exist “because some senators would rather their constituents be worn down by the slow speed of the justice system than to compromise on any judicial nominees.”
Supreme Court Ethics Reform
Another focus of federal judiciary reform that has featured prominently in the news lately is ethics reform at the Supreme Court. Most proposed changes focus on formulating a way for Supreme Court justices to be held accountable, along with an increase in transparency and disclosure requirements.
Checks and balances between the three branches of government are a hallmark of U.S. democracy, but Republicans have largely ignored calls to the accountable. Justice Samuel Alito, even said last month that Congress has “no authority to regulate” the Court, which Justice Elana Kagan dismissed. The Court is also plagued by historically low public approval, due in no small part to a lack of public trust in the high court and ProPublica’s bombshell reports exposing widespread unethical practices by Justice Clarence Thomas.
One leading ethics proposal has gained steam recently, and would address these issues and many more. The Supreme Court Ethics, Recusal, & Transparency (SCERT) Act is a comprehensive piece of legislation that was introduced by Democrats in the Senate, and recently advanced out of committee. SCERT would create an enforceable and publicly available code of conduct, require that justices adhere to the same disclosure standards as Congress, strengthen recusal requirements and more. The Supreme Court is the only branch of the federal judiciary that does not adhere to a code of conduct. Other ethics proposals include requiring explanations for recusals and the creation of an Ethics Investigations Counsel.
Supreme Court Expansion
Potentially the most discussed and most contentious proposed reform to the federal judiciary is the expansion of the U.S. Supreme Court. Notable calls for Supreme Court expansion date back to nearly 100 years ago, when President Franklin D. Roosevelt launched an unsuccessful effort to increase the Court’s makeup to up to 15 justices. The U.S. Constitution does not specify how many justices must be on the Court, and the number has changed seven times before.
Those in favor of expansion argue that the Court, which features a resounding 6-3 conservative majority, lacks the ideological balance needed to function effectively. A Supreme Court could gain that balance back through expansion, leading to fewer decisions being handed down that are seen as being on an extreme side of the spectrum. Expansion could also solve logistical problems that have increasingly weighed the Court down by decreasing the workload of opinions per justice. (In the past few terms, the Court has ruled on significantly fewer cases than in years prior.)
And while court expansion was once a more niche issue, with most discussion coming from judiciary-focused activist groups, support for expansion has become more widespread. Groups like NARAL, Planned Parenthood, March for Our Lives and the League of Conservation Voters, which are not judiciary focused but rather support causes that are heavily impacted by court decisions, announced their support for expansion earlier this year. Support in Congress has also ballooned, with more members supporting the reform than ever before.
Term Limits for Supreme Court Justices
Unlike members of Congress and presidents, those nominated to the Supreme Court are not accountable to voters via elections. They have lifetime appointments, and outside of impeachment, no recourse currently exists to limit their time on the bench. Term limits on Supreme Courts are not uncommon, the U.S. is the only major democracy in the world whose constitutional court is given lifetime terms. Given this, term limits have long been proposed as a way to ensure fresh perspectives, enhance the legitimacy of courts in the eyes of the public and establish parity among presidencies.
The Presidential Commision on the Supreme Court of the United States, which was formed as a result of an executive order by President Joe Biden, viewed term limits for the Court in a favorable light. In its report, The commission points out that lifetime terms currently result in especially contentious nomination processes, as well as pressure campaigns for justices to retire when a certain party is in power.
The leading reform among legal experts, legislators and the commission itself centers around an 18-year term limit. Gabe Roth, executive director of Fix the Court, explained to Democracy Docket that the goal of an 18 year term limit “is to ensure that Supreme Court justices serve long enough where judicial independence is maintained but not so long that they become completely out of touch with modernity, as can be the case when justices serve 30 or 35 years, which is becoming the norm.”
The Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act, introduced by Democrats in Congress, would establish 18-year terms of “regular active service”, after which justices could assume senior status. This status would mean they could continue serving on lower courts, or fill in for Supreme Court justices if a sudden vacancy arises. The bill would additionally establish regular appointments of justices in the first and third years following a presidential election, giving each president an equal chance to nominate justices.
Term limits for justices are extremely popular among the public — more than two in three Americans support them — and unlike most other Supreme Court reforms, have seen support from conservatives as well.
Lower Court Expansion
The last major reform being proposed to the federal judiciary focuses on lower courts. Despite expanding federal courts tens of times, Congress has not done so in a meaningful way since 1990. In the face of robust population growth and an increase in legal and civil cases, lower courts have become overwhelmed by the workload, and Republicans and Democrats have agreed that there simply are not enough federal judges. Some courts have faced caseloads nearly double what is recommended by the Judicial Conference of the United States, the policymaking body for the federal judiciary.
The number of new judge positions needed to be added is up for debate. The Judicial Conference of the U.S. recommends adding 79 new positions, Democrats have introduced various proposals calling for up to 203 new federal judgeships, a Republican House plan once called for 52 new district judges and a bipartisan Senate plan calls for 77 new judgeships. Details on how quickly changes should be enacted also aren’t clear, as some Republicans are pushing for a plan that would prevent Biden from creating new seats during his term.
While all of these reforms are worthwhile, some argue they need to work in tandem. Brian Fallon, executive director of the progressive court reform group Demand Justice, told Democracy Docket that we need “ethics reform to create basic guidelines for behavior, term limits to regularize the number of appointments from each president and bring down the temperature on each individual confirmation hearing, and expansion to rebalance this politically lopsided Court.”
Given the ideological split, Fallon warned that “without a plan to rebalance the Court, any other reform proposal could well be overturned by the current partisan majority.”