Three reforms to restore trust in the Supreme Court
On the anniversary of Dobbs and the revelations about Alito
Why don’t Americans trust the Supreme Court?
Because its opinions appear arbitrary, capricious, and partisan. Just look at Dobbs vs. Jackson Women’s Health Organization, which reversed Roe v. Wade a year ago today — and with which the majority of Americans disagree.
And because Supreme Court justices have been subject to bribery.
Last week, ProPublica detailed how billionaire Paul Singer, a GOP megadonor, flew Justice Samuel Alito to Alaska on Singer’s private plane at no cost. The trip would have cost Alito an estimated $100,000, not including accommodation, food, and wine.
Alito never disclosed any of this, apparently violating federal financial disclosure rules applying to all federal officials, including Supreme Court justices.
And Alito failed to recuse himself from participating in a case of financial significance to Singer.
In April, ProPublica revealed that billionaire Republican donor Harlan Crow gave Justice Clarence Thomas free luxury vacations and other gifts over a 20-year period — none of which was disclosed by Thomas.
Crow also purchased two houses from Thomas and agreed to let Thomas’s mother live in one of them at no cost. In addition, Crow paid the private school tuition for a student Thomas has described as a person “he is raising as a son.”
Thomas has failed to recuse himself from participating in cases of financial interest to Crow.
Orchestrating these bribes has been Leonard Leo, who last year received an unprecedented $1.6 billion donation to continue his work stacking the courts with ideologically conservative jurists. Leo played a pivotal role in the selection of the three Supreme Court justices appointed by Trump.
What to do to restore trust of the highest court? Congress should enact three reforms:
1. A code of ethics
Congress should enact a code of ethics on Supreme Court justices. It would: (1) ban justices from receiving personal gifts from political donors and anyone with business before the court, (2) clarify when justices with conflicts of interest should remove themselves from cases, (3) prohibit justices from trading individual stocks, and (4) establish a formal process for investigating misconduct.
2. Term limits
Article III of the Constitution says judges may “hold their office during good behavior” but does not explicitly give Supreme Court justices lifetime tenure on the highest court — even though that’s become the norm.
Term limits would prevent unelected justices from accumulating too much power over the course of their tenure — and would help defuse what has become an increasingly divisive confirmation process.
Congress should limit Supreme Court terms to 18 years, after which justices move to lower courts.
3. Expand the court
The Constitution does not limit the Supreme Court to nine justices. In fact, Congress has changed the size of the court seven times. It should do so again in order to remedy the extreme partisanship of today’s Supreme Court.
Some may decry this as “court packing,” but the real court packing occurred when Senate Republicans refused to even consider a Democratic nominee to the Supreme Court on the fake pretext that it was too close to the 2016 election but then confirmed a Republican nominee just days before the 2020 election.
Rather than allow Republicans to continue exploiting the system, expanding the Supreme Court would actually unpack the court.
Enacting these reforms won’t be easy. Big monied interests will fight to keep their control of the Supreme Court.
But these three reforms have significant support from the American people, who have lost trust in the court.
The Supreme Court derives its strength not from the use of force or political power, but from the trust of the people. With neither the sword nor the purse, trust is all it has.