Reforming the Supremacy of the Court

While public perception of the legitimacy of the Supreme Court has been declining for decades, in recent years, the favorability of the Court has fallen precipitously, with only 48% of Americans saying they have a favorable view of the Court^[1]. Not only has average favorability fallen, partisan opinions of the Court are growing increasingly divided, with 63% of Republicans characterizing the Court as “middle of the road”, while only 25% of Democrats share the same opinion^[1]. This separation notably occurred following the Dobbs decision in 2022, not the confirmation of Trump appointees, the last of which occurred in 2020, when the Court still commanded a total 70% favorability rating^[1].

This should be alarming to everyone, but especially those with a favorable view of the current Court. By itself, the Court has no power to enforce anything. The Court, by design, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”^[2] Justice Breyer warned in 2021 that “the Court’s power, like that of any tribunal, must depend upon the public’s willingness to respect its decisions—even those with which they disagree, and even when they believe a decision seriously mistaken.”^[3]Public perception of the legitimacy of the Court is the sole source of the Court’s power.

For the Republicans who acknowledge this reality, the solution is messaging (or, according to some, propaganda). They aim to convince the American public that the Court, as it is in 2026, is just as legitimate, independent, and non-partisan as it has always been, if not more so. If they are successful, the Court would indeed remain steadfast in its power. This article presumes that this outcome is unlikely—a bold presumption, perhaps, but nonetheless buttressed by the prospective reality of how roughly half of Americans would react to the way the current Court will likely leverage its power in the foreseeable future. In such a case, then, for those who wish there to be a functional and empowered Supreme Court, the only path forward is court reform.

 The Role of the Judiciary

Before we can even begin considering court reform, we need to settle on what Supreme Court we even want. While there is some disagreement about whether the Founding Fathers contemplated the power of judicial review when ratifying the Constitution, it was always meant to be the “weakest branch”^[2]. Alexander Hamilton wrote that “the judiciary is beyond comparison the weakest of the three departments of power.”^[2] It must be so, since it is not democratically accountable.

What duties are assigned to this weakest of the three branches? While Article III of the Constitution literally sets forth the role of the judiciary, Federalist No. 78, titled “The Judiciary Department”, is somewhat more helpful than the vague phrase found in the Constitution: “all Cases, in Law and Equity, arising under this Constitution.” According to Hamilton, the job of the judiciary, in addition to the obvious one of resolving legal disputes between parties, is to: (i) keep the legislature within the limits assigned to its authority; (ii) interpret laws, which includes the Constitution; and (iii) “liquidate and fix” the meaning of conflicting laws, and where possible, reconcile them. According to Hamilton, the Court’s role, even in its conception as the “weakest branch”, is to act as an arbiter of the law, and in doing so, be a bulwark against legislative (or executive) encroachment against the Constitution.

The last sentence of the preceding paragraph reads as a contradiction. If the Court is supposed to have what essentially amounts to ultimate veto power over acts of Congress or the Executive because those acts, in the Court’s view, violate the Constitution, then the Court is not the “weakest” branch—in many ways, it’s the strongest. Justice Brennan famously said, “Five votes can do anything around here.”^[4] This contradiction did not escape Hamilton, who wrote that “it can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.”^[2]The solution to this contradiction, at least according to Hamilton, is an impartial judiciary, for which Hamilton believed life tenure was necessary.

The ability of the Court to fulfill its role, then, rests entirely on its impartiality. Who gets to decide if the Justices on the Court are impartial? The American people—and a growing portion of the American people are now judging the Court as anything but. Without bipartisan belief in its impartiality, the current Supreme Court is shadow of what the Founding Fathers envisioned. If we want to have the Court that was promised to us 250 years ago, we need to find a path back to impartiality. That, or we need to accept a system of government that the Founding Fathers did not intend: one where the Supreme Court sits as a partisan legislative body above even Congress, held accountable only by the Impeachment Clause.

How did we get here?

How did we get to the point where almost half of Americans view the Supreme Court not as an impartial arbiter of constitutional law, but as a partisan branch wielding its power to favor the policies and preferences of a political party? We can trace the transformation of the public’s perception of the Court’s legitimacy through a few key watershed moments throughout American history.

We cannot do justice to an analysis of the Supreme Court’s power without a brief survey of the first watershed moment: Marbury v. Madison^[5] The text of the Constitution did not clearly grant the Supreme Court the power of judicial review. In order to clearly seize that power, Chief Justice John Marshall executed an incredibly deft political maneuver—he drafted a facially restrained opinion, ruling that the Supreme Court did not have the constitutional power to force William Marbury’s judicial commission, but in doing so, struck down a portion of the Judiciary Act of 1789 on constitutional grounds, which was the first time the Supreme Court exercised the power of judicial review.

The second watershed moment was Dred Scott v. Sandford,^[6] which was also the second time the Supreme Court exercised judicial review, a full 54 years after Marbury^[7]. At the time, slavery was a hotly contested issue. In 1820, Congress had enacted the Missouri Compromise, banning slavery north of the Missouri state line. Chief Justice Roger Taney, a staunch white supremacist, ruled in Dred Scott that the Missouri Compromise was unconstitutional because it violated the Fifth Amendment by depriving American citizens (which, as Justice Taney explained in the opinion, does not include black people) of “property” without due process of law^[6]. This opinion, if accepted by the American people, would mean that there was no way, short of a constitutional amendment, for Congress to limit or restrict slavery. It was not accepted by roughly half of the American people. It was a significant step towards the Civil War^[8].

Following the Civil War, the Court began dramatically increasing the rate at which it exercised its power of judicial review^[9]. In the seventy years following Dred Scott, The Court struck down 58 congressional laws as unconstitutional^[10] . As the Supreme Court’s power grew through repeated exercise of judicial review, so too did judicial philosophy evolve. Some legal scholars argued that the Constitution should be interpreted flexibly. Justice Oliver Wendell Holmes Jr. famously said, “The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.”^[11]Others viewed the Constitution as a static, unchanging document fixed at the time it was written (unless amended, of course). The former are considered today to be “Living Constitutionalists”, and the latter are considered today to be “Originalists”, though both judicial philosophies predate modern titles.

 Before I move on to the last and latest watershed moment—Mitch McConnell’s infamous rejection of Merrick Garland’s confirmation hearing—I want to address the nomination of Judge Robert Bork, which some Republicans will point to as precedent for what Senator McConnell did (and, they would argue, the “true” watershed moment). Judge Bork was nominated by President Reagan in 1987. Almost immediately following Judge Bork’s nomination (roughly 40 minutes later), Senator Ted Kennedy (D-MA) took to the Senate floor with a passionate ideological condemnation of Judge Bork^[12]. In the days that followed, Judge Bork underwent 12 days of hearings questioning not his professional, academic, or intellectual capacity, but his ideology^[12].

 Republicans point to Bork’s nomination as the opening salvo, launched by Democrats, of turning the Supreme Court nomination process into a partisan battle^[13]. Democrats instead argue that Bork was only nominated for his ideological leanings, not his academic or intellectual qualifications, which, if true, would make Republicans responsible instead for this shift in norms^[14]. Setting aside which side is right, what is obviously true is that Mitch McConnell’s denial of Merrick Garland’s confirmation hearing is a different in kind norm violation that is far more egregious. Even accepting the Republicans’ characterization of the Bork nomination, Bork was still entitled to a confirmation hearing. The rhetoric around the confirmation hearing may have been ideological and untethered to Bork’s achievements, but categorical denial of even the confirmation hearing itself, making it literally impossible to confirm Merrick Garland, even with consent of 51 U.S. senators, goes far beyond mere rhetorical objection to a particular nomination.

 Mitch McConnell’s denial of Merrick Garland’s confirmation hearing was the first-of-its-kind exercise of power by a Senate majority leader to deny a procedure, akin to removing a political candidate from a ballot, making confirmation impossible even if the democratic willpower to confirm an individual to the Supreme Court existed. In doing so (and then directly contradicting the justification for such a norm violation with respect to Justice Barrett’s nomination), Mitch McConnell single-handedly modified the ideological makeup of the Court—one that does not hesitate to exercise its power of judicial review. To be clear, the purpose of this paper is not to make a “self-defense” argument. Even in a scenario where McConnell did not violate any norms, but we nevertheless end up with the Court we have today, the arguments made in this paper do not change. What is relevant, however, is that Mitch McConnell’s conduct is a forceful establishment of a plainly partisan Court far removed from the vision of impartiality held by the Founding Fathers.

This brings us to the present day. The conservative majority of the Supreme Court, curated by Mitch McConnell, has (in no particular order): (i) overruled Roe v. Wade^[15]; (ii) eliminated the doctrine of Chevron Deference, a 40-year long standard in administrative law^[16]; (iii) gave the President criminal immunity for crimes committed as part of an “official act”, whatever those may be^[17]; (iv) rolled back the Voting Rights Act^[18]; (v) radically limited the EPA’s ability to regulate harmful emissions^[19]; (vi) eliminated nationwide injunctions, a legal tool used for almost a century, when asked to do so by the Trump Administration despite liberally upholding them against President Biden^[20]; (vii) held that access to transgender medical care is not protected by the 14th Amendment^[21]; and (viii) eliminated the independence of every (formerly independent) federal agency (excepting the Federal Reserve)^[22]. 

Many of these rulings are based upon contradicting principles. For example, compare Loper Bright, which expanded the power of the federal courts to strike down executive agency regulations (which are disfavored by Republicans), with Trump v. CASA, which limited the power of the federal courts to enjoin unconstitutional actions by the executive branch (where such unconstitutional actions are those signed by President Trump). Some cases, such as Trump v. United States, are wholly unsupported by originalist jurisprudence, even though originalism is used as justification to overrule Roe v. Wade. The Court distinguishes Slaughter, which held that the president can remove the head of any independent agency at will, with Cook, which held that the president could not do so for Federal Reserve governors, solely on the grounds that America’s history of central banking is special, even though this discrepancy clearly demonstrates outcome-driven motivated reasoning. The fact is, allowing President Trump to pick and choose the Federal Reserve Board of Governors would irreparably destroy the American economy, though if the principles Slaughter were to be applied principally, President Trump should have the power to do so anyway—the dissent in Cook even states as much^[23]. Perhaps the most striking example of hypocrisy is apparent in Justice Kavanaugh’s partial concurrence in Trump v. Barbara,^[24] where he writes that “The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change . . . but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in [the past] . . . but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.” For those who reject “Living Constitutionalism” but nevertheless wish to bend the Constitution to their desired outcome, Justice Kavanaugh clearly articulates the conservative workaround: Living Originalism. At the end of the day, the distinction between modulating the meaning of the words in the Constitution or the application of the original public understanding of those words is merely illusory. In either case, policy considerations are driving the decision.

 Those who insist that the current Supreme Court is sufficiently impartial will attempt to individually justify each ruling, but viewed as a whole, there is obvious inconsistency in application of principles that, coincidentally, allows the majority to arrive at the desired outcome^[25]. In partisan cases dealing with wedge issues, the conservative justices are originalists only when it leads to the outcome they desire; otherwise, they are happy to weigh prudential considerations, legislative history, precedent, and all other doctrines at their disposal. Some may point to the Court’s recent ruling in Trump v. Barbara^[26] upholding the historical understanding of the Birthright Citizenship Clause, as an example that the Court is not hopelessly partisan. Setting aside the fact that the constitutional ruling was along the razor-thin 5-4 margin, the problem is not that the Court functions as a rubber stamp for Republicans. The problem is that the Court is not impartial. The irrefutable reality is that the current Supreme Court is undergoing a project of radically transforming the structural pillars of the American institutions that have supported the country through its meteoric rise from the ashes of the Civil War to a global hegemon, driven by partisan and ideological fervor, not principled application of judicial philosophy.

Court Reform

 What now? For those who believe that the Court requires reform, there are a few options on the table:

 McConnell Strategy

One possible approach is to maintain the status quo and simply leverage Mitch McConnell’s strategy to deny every single Republican nominee to the Supreme Court for as long as Democrats can hold 51 seats in the Senate. In addition to maintaining a majority in the Senate, this strategy requires vacancies on the Court to appear only through the retirement or death of a Justice, which are both highly unpredictable, and electoral victory in the Executive Branch when those vacancies occur. This strategy is the slowest approach but also the least politically disruptive. It does require those American people dissatisfied with, or worse, harmed by, the current Supreme Court, to endure the consequences of its rulings for as long as necessary to implement this strategy—for those without the privilege to do so, this is an unacceptable request.

 Term Limits

 Term limits is a proposal most recently publicized by President Biden,^[27] though it has gained general traction among Democrats as well. The proposal is as follows: each President will be allowed to nominate two justices per term, and each Justice will be term-limited to 18 years. Term limits exist in other democracies, such as Germany, France, and Switzerland, without destroying those countries^[28]. If it works elsewhere, why not here? After all, brilliant as he was, Alexander Hamilton turned out to be wrong about life tenure. It doesn’t seem to guarantee an impartial, non-partisan Supreme Court at all. If the only benefit to life tenure—impartiality—doesn’t exist, what’s the point in keeping it? Why accept the randomness of death and retirement being determinative of the ideological makeup of the branch of government that, in many ways, sits above both the Executive and the Legislative branches, capable of molding the contours of the Constitution?

 There are a few issues to consider when it comes to term limits. First, by giving each President the ability to nominate two justices, not only would the nomination process be a partisan one, it would be a democratically determined one. In essence, people would be voting for two justices at the same time as they vote for a President and a Vice President. Setting aside that this would entirely defeat even the thinnest veneer of the Court’s impartiality, the standards for a Supreme Court justice would now become electability, not academic achievement or intelligence. At that point, there isn’t much point to having a Supreme Court (with the power of judicial review) at all—it’s just a Super Congress. Congressionally created judges would be enough to resolve inter-party disputes. Even if impartiality and competence could somehow be maintained, there is the additional problem of perverse incentives for justices who now would be faced with considering what job to take after their 18 years on the bench. Ultimately, passing a term limits law is an acceptance that, for the foreseeable future, we will not have an impartial Supreme Court.

 Court Packing

 Court packing is the proposal of passing a law to add seats to the Supreme Court, and it would practically have a similar outcome to the term limit proposal. It is an abandonment of the dream of an impartial Supreme Court, turning the Court into a plainly partisan institution controlled by whichever party manages to seize bicameral and executive electoral victory. Nevertheless, proponents of court packing argue that for too long, Republicans have been allowed to commit egregious norm violations without accountability, and if Democrats were to exercise self-restraint, such self-restraint would amount to unilateral disarmament^[29]. Instead, Democrats need to exercise political self-defense to demonstrate to Republicans that they will be held accountable for manipulating the ideological makeup of the Court. To supporters of court packing, term limits is a compromise position that is far too generous to Republicans, allowing Republicans to appoint conservative justices without winning both chambers of Congress.

 This argument presumes that Mitch McConnell has already irreparably destroyed any hope of an impartial Supreme Court, and the only game left to play is power politics—the Republicans will race to the bottom without pause, and the Democrats can try to win the race or concede it entirely. This approach raises the same questions as in the case of the term limit proposal: do we really still need a Supreme Court with the power of judicial review? The court packing proposal is a reflexive reaction to Republican conduct, but it does not sufficiently hold an enduring view of a better form of government in and of itself. We need to consider the off-ramp. One that leads to what the Founding Fathers intended all along: an impartial Court.

 The “endgame” of court packing is not necessarily an endlessly oscillating Court with an ever-increasing number of justices. There is a way out: constitutional amendment. A proposed amendment would neatly compliment the strategy of court packing, because court packing would be simply a means to an end—that end being an amendment to enshrine an independent Supreme Court. With the freedom to amend the Constitution, there are any number of possible methods for ensuring that the Supreme Court remains non-partisan and independent. Some have proposed an amendment whereby any binding Supreme Court ruling requires agreement from at least one Justice who has been appointed by a President belonging to each of the two largest parties represented in Congress^[30]. Another approach may modify the nomination process that requires the Senate to vote on a Supreme Court nomination within two weeks of the nomination and expressly requires two-thirds of the Senate for confirmation. Each approach would have to account for the then-current partisan makeup of the Supreme Court, but with the flexibility of an amendment, surely there is a solution. Ultimately, for liberals, the goal should not be to enshrine an authoritarian Super Congress that caters to the whims of a political party, but to join Republicans in the race to the bottom and force their hand into carving in stone an impartial Court.

 Conclusion

 There is a world where court reform is not necessary. In such a world, the current Supreme Court recognizes the threat to its legitimacy and voluntarily molds itself into the impartial Court it was meant to be. That would be ideal, and the threat of court packing has caused behavioral shifts in the Supreme Court in the past^[31]The threat would not materialize unless Democrats regain control of both chambers of Congress and the presidency in 2028, so until that time, the chorus of court reform must continue to grow.

 The Supreme Court has changed many times throughout American history, and there is no reason to think it will stop changing. As it is now, its legitimacy in the public’s view is declining. Where such legitimacy is the sole source of the Court’s power, it is obvious that this current trajectory is not sustainable. Any court reform, however, should ultimately aim to be constructive, not destructive. Short-term fixes, such as court packing, need to be aimed towards long-term solutions that drive us towards an impartial Supreme Court, which, as the Founding Fathers correctly believed, is necessary as a bulwark against unconstitutional overreach by the branches of government that collectively hold the purse and the sword.