The U.S. Supreme Court wields vast power with minimal accountability. Its actions shape the law, democratic institutions, and people’s lives. Yet it has no direct means of enforcing its decisions. Its authority depends emphatically on its credibility with the public.
Today, the Supreme Court is facing a crisis of confidence. Americans’ favorable views of the Court hover at historic lows. Polling shows that only 22 percent of voters have a “great deal” or “quite a bit” of confidence in the Court. It’s clear why. Over the past few years, the Court has been defined by polarizing opinions that have taken away constitutional rights and grossly expanded presidential power, serious ethics scandals, and contentious confirmation battles.
The Court has always had an unavoidable political dimension — the justices are appointed by presidents with the advice and consent of the Senate. But it has become increasingly out of balance in recent years, often representing the will of one political faction. Beginning with George H. W. Bush, who appointed Justice Clarence Thomas, the longest-serving member of the current Court, Democratic and Republican candidates have won the presidency an equal number of times, yet Republicans have appointed six of the current justices, establishing a supermajority on the Court. In fact, the last chief justice appointed by a Democrat took office in 1946. Extreme polarization in Congress has led to toxic, high-stakes, partisan confirmation fights, heightening the politicization of the Court.
Ethics scandals have further roiled the Court. Reports of justices accepting lavish trips and expensive gifts cumulating in millions of dollars, including from people with business before the Court, as well as engaging in political fundraising activities and controversial displays of partisanship, have led to public outrage yet no meaningful accountability.
In recent decades, the Court has exercised extraordinary influence in a way that would have been unrecognizable to the framers. Alexander Hamilton called the judiciary the “least dangerous” branch. Throughout the first century of the United States, the Court was largely limited in its role and modest in its ambitions. Then, through a few notable periods — during the Taney Court, which issued the Dred Scott decision; the Progressive Era, when justices blocked decades’ worth of social legislation; and the Warren and Burger Courts of a half century ago, with their sweeping rulings on civil rights and criminal procedure — the Court played an increasingly central role in political life. Each of these instances resulted in strong public backlash.
The Roberts Court has thrust the institution into the center of public controversy again. It has dismantled laws that protected against the corrupting influence of money in politics, which has led to the domination of wealth in U.S. elections and policymaking. It has gutted landmark pieces of legislation, including core provisions of the Voting Rights Act. It has struck down acts of Congress at a rapid pace. Recent rulings have led to the nullification of many state and federal laws regulating gun safety and have aggressively curbed the power of regulatory agencies to protect public health and the environment. It has eroded individual rights and liberties — including a federal right to an abortion — in a way that is unmoored from public values. And most recently, with some notable exceptions, it has enabled an unaccountable executive to run roughshod over the U.S. system of checks and balances, often with no explanation for its rulings. These decisions have similarly provoked immense public backlash.
The Court today can appear to operate more like an ideologically committed legislature than a restrained judicial body. As Justice Elena Kagan has observed, “The way the Court retains its legitimacy and fosters public confidence is by acting like a court.” Otherwise, the justices are simply “nine unaccountable people, people who haven’t been elected” who “make the rules for a democracy.”
We need a strong Supreme Court to play its proper role in our democracy, protecting democratic institutions, upholding the rule of law, and safeguarding individual rights. But this Court no longer operates as the framers envisioned, nor as it should. Reforms can rebuild the public’s trust and restore balance in our system of government. That requires recognizing that the Supreme Court is an equal branch of government, and as such, it can and should be criticized with rigor. That is the American way. The good news is that sensible, popular solutions can make a difference.
Numerous reforms should also be considered for lower federal courts, such as increasing the number of judges to keep pace with our growing population or reforming the processes around nationwide injunctions. But this moment demands immediate reform of the Supreme Court, where significant questions concerning our democracy are playing out and will meaningfully shape our government for decades to come.
Many may view the Court as impossible to reform. But it can be done. Article III of the Constitution, which establishes the federal judicial branch, leaves Congress with enormous control over the Court’s structure and operations. It has changed the makeup and rules of the Court many times before. It has modified justices’ duties and the Court’s docket, created recusal standards, and even altered the Court’s size and jurisdiction.
It is time for Congress to act once again and return the Court to its proper place in the U.S. constitutional system. Congress must pass urgently needed reforms, including the following.
