Supreme Court Reform

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Supreme Court Reform

Our Supreme Court is in a full-fledged legitimacy crisis. Put simply, we no longer have a Supreme Court that can be trusted to uphold constitutional rights, democratic principles, and judicial norms in this country. This is the result of the Right packing the Supreme Court and of the Court’s resulting conservative supermajority being driven by a staunchly partisan agenda that is increasingly hostile to fundamental rights and judicial norms.

The conservative supermajority is threatening our democratic legitimacy by failing to uphold constitutional guardrails. Our democracy, our right to self-government, depends on a meaningful right to vote. Right now, our right to vote is in jeopardy because of this Supreme Court, which has upheld voter suppression laws and OK’d partisan gerrymandering. Similarly, the Court’s conservative supermajority is taking direct aim at the separation of church and state in disregard of 50+ years of precedent regarding the First Amendment.

This packed Supreme Court is a proven threat to fundamental rights. It has already overruled Roe v. Wade, wiping out the federal constitutional right to abortion and nearly 50 years of precedent. The Court’s decision in Dobbs v. Jackson Women’s Health also effectively serves as an invitation for states and plaintiffs to pursue litigation to rewrite constitutional law in this country in the interests of white supremacy, sexism, and misogyny. This could include efforts to overturn the Court’s previous decisions on same-sex marriage, inter-racial marriage, and contraception.

The conservative supermajority is violating the Court’s own norms and precedents at an alarming rate. In addition to its increasing disregard for precedent, it is abusing the shadow docket, a process meant for emergency measures, to decide consequential cases that impact the lives of millions of people. This is exemplified by the Court’s use of the shadow docket to strip pregnant people in Texas of access to their constitutional right to abortion care in the fall of 2021, when Roe v. Wade was still the law of the land.

Combine these trends with the generational impact of life-tenure for justices and the hyper-politicization of the Supreme Court nomination process, and the Supreme Court’s legitimacy is crumbling. The combined impact of this legitimacy crisis is being disproportionately felt by people of color and women, exacerbating existing inequalities within our laws and legal systems. Every indication is that the harm imposed by this Supreme Court on the guardrails of our democracy and on our fundamental rights will only increase in the absence of reform, with particular harm felt by the most marginalized.

Both structural and non-structural Supreme Court reforms are urgently needed to preserve judicial norms, restore the Court’s credibility, and to protect our country’s democratic legitimacy.

Podcast Series

Jeanne Hruska speaks with Kermit Roosevelt from the University of Pennsylvania Carey Law School about the “how to” of Supreme Court reform. They dive into the mechanics of establishing term limits for justices and expanding the Court. They also discuss the difference between the symptoms and the cause of the Court’s legitimacy crisis.

Elie Mystal, Legal Analyst and Justice Correspondent for The Nation, stops by Broken Law to talk with Jeanne Hruska about what he means when he says, “you either control the Supreme Court or you control nothing.” They discus the Supreme Court’s role in creating the voting rights crisis confronting the country and the Court’s mounting assault on the executive branch. Elie concludes by making the case for why having fifty justices on the Court could actually make sense.

The U.S. Supreme Court is facing a legitimacy crisis. Put simply, we no longer have a Supreme Court that can be trusted to uphold constitutional rights, judicial norms, and democratic guardrails in this country. ACS President, Russ Feingold, and Executive Vice President, Zinelle October, join Jeanne Hruska to discuss how the Supreme Court reached this point and the structural and non-structural reforms that are urgently needed to restore the Court’s credibility and to protect our country’s democratic legitimacy.

Programs

Supreme But Not Immune: Creating a Binding Code of Ethics for Supreme Court Justices

ACS Webinar (May 2, 2022)

The U.S. Supreme Court is in the midst of a legitimacy crisis. Recent revelations regarding Ginni Thomas’s political activities and how they relate to cases that have or might come before her husband, Justice Clarence Thomas, have drawn renewed attention to the lack of a binding code of ethics for Supreme Court justices. Already bruised and battered by the controversial confirmations of Justices Gorsuch, Kavanaugh, and Barrett and a series of decisions that appear more political than jurisprudential, the perception that each justice decides for themselves what is and isn’t ethical further weakens the Court’s reputation and legitimacy before a skeptical country.

Join ACS for a discussion of the approaches the judiciary and Congress might pursue to create an effective, binding code of ethics for Supreme Court justices and the ways in which such a move could begin to restore legitimacy and trust in an impartial Supreme Court.

Speakers: Veronica Root Martinez, Professor of Law, Robert & Marion Short Scholar, Director, Program on Ethics, Compliance & Inclusion, University of Notre Dame Law School; Louis J Virelli III, Professor of Law, Stetson University College of Law; Kimberly Humphrey, Senior Legislative Counsel, Alliance for Justice, Moderator

The Way Forward on Supreme Court Reform: Debriefing the Presidential Commission Report

ACS Webinar (December 20, 2021)

President Biden’s Commission on the Supreme Court, tasked with providing “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform,” has voted to send its report to the President. While the Commission was not asked to advance recommendations, what groundwork does the report lay for reform efforts?
What issues need to be resolved to restore the Court’s legitimacy? And in a month when we’ve seen more than ever the Court’s potential to impact people’s lives, what changes can be made to ensure that it remains an institution that can be trusted with our constitutional rights?

Speakers: Commissioner Kermit Roosevelt, David Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School; Russ Feingold, President, ACS; Julie Suk, Professor of Law, Fordham University School of Law

The Berkeley Forum

The Berkeley Forum Live Stream (October 27, 2021)

ACS President Russ Feingold joined The Berkeley Forum at the University of California, Berkeley to discuss the Court’s legitimacy crisis and some of the specific reforms that are urgently needed, including adding seats to the Supreme Court and ending life tenure in favor of term limits.

What’s Next for Court Reform?

ACS Webinar (April 8, 2021)

The debate over whether and how to restructure both the Supreme Court and the lower federal courts has intensified in the past year, particularly after Amy Coney Barrett’s Senate confirmation took place just one week before the 2020 presidential election. For some in the progressive community, the Biden administration’s formation of a commission to study the issue is not a sufficiently urgent response. A legislative response is forthcoming in the House of Representatives, where bills to add seats to the Supreme Court and set term limits for the Justices will be introduced, and pressure is ratcheting up from the grassroots, but court reform will still be a difficult issue to advance in the U.S. Senate. How can progressives move this agenda forward in the current political climate?
Speakers: Russ Feingold, ACS President; Hon. Mondaire Jones, 17th Congressional District of New York; Chris Kang, Chief Counsel, Demand Justice; Leah Litman, Assistant Professor of Law, University of Michigan Law School; Nancy Zirkin, Strategic Consultant and Former Executive Vice President of the Leadership Conference on Civil and Human Rights; Jennifer Bendery, Senior Politics Reporter, HuffPost, Moderator