The first question to ask is whether the court is broken.
I would argue yes. Many other people think so, too. Polls show this is the least trusted court in generations. It’s widely seen as a partisan body. Vox describes it as “essentially [a] policymaking arm of the Republican Party” (see article here).
Conservative justices are throwing out long-established precedents so rapidly law professors no longer know what to teach students. Sen. Elizabeth Warren, a former law professor, is right when she says, “We have a Supreme Court that has basically jumped the guardrails.” Their rulings on abortion, guns, regulation, and presidential immunity have had, or threaten to have, adverse effects on society.
These decisions are largely based on a “textualist” or “originalist” approach to interpreting the Constitution, but that doesn’t fully explain them, because sometimes their reasoning is just plain arbitrary (and, by all appearances, moved by partisan politics), as when they’ve changed case facts to justify their decisions.
Is this judicial approach even valid? Not really. Retired justice Stephen Breyer, in his new book (here), explains the importance of precedent, how “traditional” judges interpret the Constitution and statutes, and goes at length into why textualism and originalism don’t work.
Then there’s the corruption: Clarence Thomas and Sam Alito took millions in gifts and didn’t disclose them. Billionaires don’t give away money; they expect something in return. It doesn’t have to be an overt, identifiable quid pro quo to be corrupt; there’s a reasonable presumption that under-the-table gifts to public officials are either buying or rewarding favors.
On Monday, July 29, 2024, President Biden unveiled a three-pronged Supreme Court reform plan that would (1) create a binding code of ethics for Supreme Court justices, (2) institute term limits for justices, and (3) overturn the court’s presidential immunity decision.
Enacting it requires, at minimum, that Democrats have a House majority, 60 Senate seats, and the White House, which is unlikely (read about a typical Republican reaction here). All three reforms may require amending the Constitution, which is impossible against Republican opposition.
This doesn’t mean Biden’s proposals have no utility. Putting Supreme Court reform on the table gives the Democrats a campaign issue in the 2024 elections that could help them retain their Senate majority. If they do, and Trump wins the White House, they can prevent him from appointing judges.
From now, whenever they can, Democrats should do what Republicans already are doing: Hold court vacancies open until a president of their party can fill them. That’s how Republicans got their Supreme Court majority, and Democrats can and should play that game, too.
Thomas and Alito are the oldest justices. They won’t be there forever. When they’re gone, the court will have 3 conservatives, 3 liberals, with Chief Justice Roberts in the middle. He’s relatively moderate, so that’s a better setup than the setup existing now. Then, when the Democrats can fill those seats, the liberals will have a 5-4 majority even if Roberts votes with the conservatives.
This, not an unpassable court reform scheme, should be the Democrats’ objective. They should actively campaign against the court, using its unpopularity to elect Democratic presidents and senators, then parlay White House and Senate control into a liberal court majority when vacancies occur. It may take years to implement, but that’s much better than a permanently reactionary court.
Once liberal justices are a majority again, they can reinstate worthy precedents and throw out this court’s garbage. That doesn’t require amending the Constitution, it only requires winning elections.