Dem
50
Ties
1
GOP
49
Confidence in the Supreme Court is at an all-time low and many Democrats see the justices as simply partisan hacks who have little to no interest in the law or the Constitution. Accordingly, Democratic members of Congress are now introducing a slew of bills to reform the Court. Some are probably unconstitutional, like limiting justices to an 18-year term, but others are perfectly legal if the votes are there. Of course, no reforms are going to happen in this term of Congress because Republicans love what the Court is doing, with some minor exceptions. If Democrats get the trifecta in 2029 and either abolish the filibuster or create more carve-outs to it, some of the reforms are possible. The flurry of bills now is not intended to pass any legislation. If is intended to energize Democratic voters and get them to the polls this November. If the strategy works, it could be reused in the 2028 campaign.
The "reform" most often talked about is expanding the Court to 13 justices, to match the number of federal circuits. Then each justice would get one circuit as his or her very own. However, since many people consider 13 an unlucky number (and many large hotels do not have a 13th floor), Congress could redivide the states into 15 circuits and raise the number of justices to 15 to match.
Sen. Sheldon Whitehouse (D-RI) expressed the view of many Democrats when he said: "There's constant and building dismay about the increasingly appalling record of the Court. And I think the continuing interest in reform springs from continued dismay and concern about the court's misbehavior."
Expanding the Court is not the only thing Congress could do by law, without needing a constitutional amendment. We have discussed some of the possibilities before and won't repeat that here. The current bills are mostly different, though. Rather than structurally changing the Court's power (as we proposed), a number are intended to keep the justices honest, such as having binding ethics rules and rules requiring justices to put their assets in blind trusts. None of the bills address the burning question of who vacations with whom, however.
Another target is the shadow docket, in which justices make summary rulings in cases that don't go through the regular order of a district court trial, then appeal to a circuit court, and then an oral hearing before the Supreme Court. In these cases, the Court just gives a decision and sometimes a short explanation. The goal here is to reduce or eliminate the shadow docket.
A core problem that is hard to fix is the nomination process for justices. It used to be that presidents would nominate outstanding lawyers with a deep understanding of the law and Constitution. These justices would sometimes rule the way liberals liked and sometimes the way conservatives liked, depending on the facts and the law. Now presidents nominate only justices who have a proven track record of supporting views the president likes. And then usually they pick ones who are quite young, so they can serve 30 or 40 years.
Another proposal is make the Court transient. For any year, nine justices would be chosen at random from the pool of appeals court judges. The next year there would be a new set of nine. This could make justices more likely to avoid far-out partisan decisions that next year's crop will throw out. By adhering closely to the law and the Constitution, decisions would last longer.
In any event, it seems clear Democrats are going to run against the Court this year and probably in 2028 as well. Then if they get the trifecta, the rubber will hit the road and we will see if they actually take any action. (V)