For the past two weeks, millions of Americans have been outraged. A leaked copy of U.S. Supreme Court Justice Samuel Alito’s draft majority opinion overturning Roe v. Wade (1973) has sent shockwaves across the country — for how it undermines nearly 50 years of precedent, threatens other “unenumerated rights” and stakes the most extreme position against the crucial right to abortion.
For those who have been paying close attention to the U.S. Supreme Court, the draft was unsurprising, even if no less horrifying. Serious concerns about the Court’s legitimacy have been swirling long before the leak.
In April 2021, President Joe Biden issued an executive order creating a Presidential Commission on the Supreme Court of the United States, a bipartisan group of legal experts who were tasked with investigating the contemporary debates around court reform. After six public meetings, numerous expert testimonies and more than 7,000 public comments, the 34 Commission members voted unanimously in December 2021 to submit the final report.
While the executive order mandated that the Commission provide analysis, not advice nor conclusive policy recommendations, as a reader, the biggest takeaway from the report seems to be that there is no major takeaway.
“This report is a disappointment to anyone who’d hoped for a hard-hitting effort to address the Supreme Court’s deep troubles,” wrote Senate Judiciary Committee member Sheldon Whitehouse (D-R.I.) after the initial draft was released. Early on, the report makes it clear that, “mirroring the broader public debate, there is profound disagreement among Commissioners on these issues.”
Nonetheless, the report fulfills its mandate in explaining, in great detail, the history, constitutionality and logistical considerations for different reform proposals. In today’s Data Dive, we explore three main reforms that emerged in the 288-page report and the path forward in Congress.
Expand the Court beyond nine justices.
While Article III of the U.S. Constitution establishes the Court, it doesn’t say much more. The size, structure and functioning of the Court was left to Congress to outline in a series of Judiciary Acts. Throughout U.S. history, there have been seven changes to the number of justices sitting on the Supreme Court, the last of which settled at nine justices in 1869.
The recent resurgence of a slogan to “expand the Court” is reminiscent of the 1937 “court-packing” efforts by President Franklin D. Roosevelt. His proposal would’ve allowed the president to appoint an additional justice when a justice reached the age of 70 and did not retire, but limited the Court to fifteen members. While Roosevelt’s proposal is often critiqued in collective memory as a nefarious political move, it arose from a two-year study conducted by the Department of Justice and was seriously debated in Congress at the time.
Today, the argument for an expanded Court has reemerged. Proponents point to how the Senate has violated confirmation process norms which has led to a Court misaligned with the American public. A larger Supreme Court also lowers the emphasis on any one justice, enables the Court to be more reflective of the nation’s diversity and gives justices capacity to resolve more cases.
Most proponents push for gradual expansion, so a new justice is appointed during each four-year presidential term until a given limit — some have proposed 13 justices, for example.
Despite presenting conflicting arguments for and against Court expansion, the report made it explicitly clear that this action is fully within Congress’ authority: “Significantly, both supporters and opponents […] shared one assumption: Congress has broad formal power to expand or contract the Supreme Court, such that the only way to freeze the size of the Court in place was through a constitutional amendment.”
Impose term limits for Supreme Court justices.
“Many of the most pressing problems with the court can all be traced to something that sounds like a good idea: life tenure,” wrote former Attorney General of the United States Eric Holder, in an op-ed endorsing term limits last week.
The United States stands out as an anomaly among advanced democracies in not having an age limit nor term limit for justices. In contrast, 31 states and Washington D.C. have some type of retirement requirement for their state supreme courts. Many of the issues of life tenure can be addressed through term limits, with the most prevalent proposal being 18-year, nonrenewable terms.
In this day and age, openings for new justices commonly arise through calculated timing of retirement (think about the pressure Justice Stephen Breyer faced to retire during President Biden’s term and the consequences of Justice Ruth Bader Ginsburg not doing so before President Barack Obama left office). Term limits would end “strategic” retirements, and by doing so, ensure that one president isn’t given an outsized opportunity to nominate justices over any other. It also eliminates the real or perceived sense of partisanship driven by party-guided retirements.
Life spans have also lengthened significantly. “The Framers adopted life tenure at a time when people simply did not live as long as they do now,” wrote none other than Chief Justice John Roberts in 1983. “A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today.”
The report details that until 1960, the average term was 15 years; since 1970, the average term for a Supreme Court justice has increased to 26 years. Justice Clarence Thomas has been on the country’s highest court for over three decades. If we look at the most recent nominees, they are also relatively young (Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson were 49, 53, 48 and 51-years-old, respectively, when nominated).
The report also describes how 18-year terms are long enough to insulate a justice from “political pressure and financial temptation” while making sure there are fresh perspectives brought to the Court. Consequently, the report concludes that mandatory retirement age is the inferior policy option to term limits as it does not guarantee regular appointments for presidents and there still remains the incentive to nominate younger justices.
The report also suggests that imposing term limits is the reform with the greatest bipartisan support, so why not enact them right now?
It’s not clear that it’s within Congress’ constitutional power to do so.
Among the very few elements outlined in the Constitution is that federal judges, in both the Supreme Court and lower federal courts, “shall hold their Offices during good Behaviour.” This has typically been construed to guarantee lifelong appointments.
The report dives into some of the important logistics of enacting term limits by constitutional amendment, namely how to transition into this system and deal with the current justices on the Court. This may include temporarily expanding the Court until the system is fully implemented. With a statute, Congress would have to contend with the “good Behaviour” clause and potentially relegate justices who have served for 18 years to different duties within the court system, as opposed to mandating complete retirement.
The Ginni Thomas problem, also known as, Supreme Court ethics.
Amidst the detailed pros and cons lists, the presidential commission did agree on one direct recommendation: to create an advisory code of conduct.
The nine Supreme Court justices are the only members of the federal judiciary not governed by a code of conduct. All other federal judges adhere to an advisory code that was composed in 1973 and has been updated in the years since then. The Supreme Court could internally adopt a code or Congress could impose one. A hypothetical code could be an extension of the code imposed on the lower courts or one context-specific to the Supreme Court.
The report considers disciplinary frameworks, but doesn’t endorse anything more than advisory. How, then, will court ethics be enforced? It’s been recorded that justices have routinely failed to recuse themselves from a case when there’s been a conflict of interest, even though federal statute requires recusal in “in any proceeding in which his impartiality might reasonably be questioned.”
There are several bills in Congress focused on these reforms.
The report also evaluated a series of other policies, including rotating justices between the Supreme Court and lower federal courts, stripping certain issue-specific jurisdictions, requiring supermajority votes for invalidating congressional acts, permitting Congress to override decisions, reforming the shadow docket and more.
As far as next steps, it’s up to Congress.
Nancy Gertner and Laurence Tribe, two members who served on the Presidential Commission on the Supreme Court, wrote an op-ed soon after the report’s publication, unequivocally advocating for court expansion: “Offsetting the way the court has been ‘packed’ in an antidemocratic direction with added appointments leaning the other way is the most significant clearly constitutional step that could be taken quickly.”
A bill introduced last year would do just that. The Judiciary Act of 2021 would add four seats to the U.S. Supreme Court, bringing the number of justices on the Court from nine to 13, a number that aligns with the number of federal circuit courts. The bill has picked up five more Democratic cosponsors (now up to 55) in the past few days since the leaked Dobbs opinion.
Elsewhere in Congress, the Supreme Court Term Limits and Regular Appointments Act of 2021 would establish 18-year term limits on any subsequently appointed justices; after 18 years, justices could choose to serve on lower courts. While Gertner and Tribe expressed their initial support for term limits, they have since concluded that the impact of the reform would take too long: “Term limits cannot be implemented in time to change the court’s self-reinforcing trajectory.”
Finally, U.S. Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) introduced the Judicial Ethics and Anti-Corruption Act of 2022 just last week. The bill, which already has six Senate and 15 House cosponsors, would require the Supreme Court to adhere to a binding code of conduct. The bill also bans federal judges from owning certain assets that create financial conflicts of interest, strengthens restrictions on judicial gifts, overhauls the recusal processes for the Supreme Court and creates accountability mechanisms.
While critics may say that Supreme Court reform that takes place in the political sphere undermines judicial independence, Gertner and Triber got it right: “Far worse are the dangers that flow from ignoring the court’s real problems.”