This article is featured in the 2023 Freshman special issue.
The number of justices on the Supreme Court has remained fixed at nine — eight associate justices and one chief justice — since 1869. The newest craze gripping pundits and partisans aims to change that. Some liberals now believe that President Joe Biden should add seats to the Supreme Court, stacking it with favorable judges. A few attention-seeking law professors, dedicated to pushing liberal thought into anarchism, have even claimed that Biden should ignore the court’s rulings. But, as with all politically motivated reforms, adding justices to the Supreme Court just isn’t sustainable. Ethical reform, however, is.
The pundits are right to be concerned by the current nomination process for Supreme Court justices. Whether presidents get to nominate justices depends purely on when the current justices retire. That is why former President Donald Trump was able to push through three justices: Neil Gorsuch, Amy Coney Barrett and the iconic Brett “Sometimes I had too many beers” Kavanaugh. In the face of this influx of conservative justices, some politicians now argue that we must reform the Court to weaken the power of its new conservative supermajority. But the brutal fact of the matter is that Trump was representing his supporters, 62 million Americans, when he appointed those three justices. That’s fair play, and any reform with the goal of diluting the power of legally and fairly nominated justices is petty politics at best, and destabilizing at worst.
This influx of Trump-appointed justices led to a recent spree of conservative victories, including overturning Roe v. Wade, limiting equal treatment under the law for LGBTQ citizens and overruling affirmative action. The repeal of these laws that protected the equitable rights of all citizens is concerning and a setback for the country. But here’s the rub: The Supreme Court does not necessarily represent the views of the country. It is not meant to represent the views of its citizens. It is not meant to be a democratic institution because justices are appointed and not elected. Instead, it is meant to interpret the Constitution and laws. And its decisions reflect that.
Take the example of abortion. An ABC News/Washington Post poll found that in 2021, 60% of Americans believed that the Supreme Court should uphold Roe’s precedent. The court overturned it. Take Biden’s attempts to forgive student loans. Obviously, a popular policy. But it relied on an obscure law, leveraging a weak justification into stunning amounts of change without legislative action. The courts struck it down. These decisions reveal one pattern — the court rules on the law, not public opinion. And contrary to popular belief, the court also rules in favor of liberal plaintiffs; it recently upheld laws limiting so-called “ghost guns” and backed a law that gives preference to Native Americans in the adoption of tribal members .
In the face of a deluge of op-eds and MSNBC tirades, President Biden, exercising a restraint rarely seen in politicians, has made it clear that he does not support adding seats to the Supreme Court. Instead, he created a commission to study the potential for Supreme Court reform. And although this is a classic way for politicians to punt on difficult problems, it is worthwhile to explore the commission’s report.
The commission found that any attempt to expand the court would be riddled with issues. The report does make the rather convoluted argument that expanding the court could remind Republicans of the consequences of unfairly stalling president’s nominations, as they did to former President Barack Obama. But while that may have been bad politics, and immoral, it was perfectly legal. In fact, such stalling of late-term nominees to the Supreme Court has occurred multiple times since America’s founding, according to an article from Smithsonian Magazine.
Fighting back by adding seats only opens another channel for asinine disputes, permanently butchering precedent and launching an endless contest over the number of seats in the chamber. The report recognizes this, stating: “For opponents, the United States’ fidelity to this norm [nine justices] has particular significance in light of developments in other parts of the world where manipulation of the composition of the judiciary has been a worrying sign of democratic backsliding.”
The commision is right — dragging the Supreme Court into the maelstrom of politics would further destroy its legitimacy and weaken its vital power. We’ve seen this across the world, and most recently in Israel. As the latest salvo of its abrupt turn to right-wing religious extremism, Israel’s government recently weakened its Supreme Court by removing its power to decide if government policy is reasonable.
Expanding the court would inevitably erode our democracy — you cannot take back that type of change. Once the majority swings back to the Republicans, they would add seats, or take them away. And I’m sure the Democrats would complain, saturating the airways with shouts of injustice, despite their party triggering such change. Once the Democratic Party regained control over Congress, they would change the seats again, dragging the Supreme Court into the ridiculous tug-of-war that has tanked Congress’s already dismal efficacy.
A comparable issue is the filibuster, the rule that ensures that senators can stall bills unless 60 senators vote to end the debate. When Democrats gained a majority, they attempted to weaken the filibuster to pass bills over Republican objections. But then, when the Democrats lost their majority, they used the filibuster repeatedly, including twice in the passage of the Cares Act. If Biden reformed the court, abandoning precedent, odds are the Democrats would regret the changes the second they lost power.
The commission’s report does reference another prominent reform idea — term limits for justices. One plan suggests 18-year term limits, organized so each president elects two justices. On the surface, this seems like a great plan; it ensures that no one faction gets to nominate too many justices while maintaining the court’s structure. But who’s to say that the next ruling party doesn’t change the term limit to 14 years, or 12 years? The entire reasoning behind lifelong terms is to insulate justices from the short-term passions of the electorate and self-interested politicians. This plan would demolish that protection.
There is only one valid path for Supreme Court reform: ethics. The Supreme Court depends on its legitimacy to keep ruling on the supreme law of the United States. But its reputation is tarnished. ProPublica has exposed justices’ shameful and exorbitant vacations with rich GOP power brokers, which the justices failed to disclose. Justice Samuel Alito took a fishing trip and private jet journey with a billionaire, who later had cases before the court. Not to be outdone, Justice Clarence Thomas accepted gifts including travel on a massive yacht and a nine-day trip in Indonesia with Harlan Crow, a real estate developer he’s vacationed with every year for two decades. This, coupled with unpopular decisions, has pushed the court’s approval rating to an all-time low — tying the court’s record-low approval rating in Sept. 2021, according to a Gallup poll conducted in July 2023.
In the face of public uproar, and despite repeated exclamations of its independence from everything and everyone, the Court did issue a so-called “Statement on Ethics Principles and Practices.” This thrilling read — a remarkable exercise in obfuscation — studiously avoids taking any stance on extravagant gifts to justices.
Senators Angus King, D-M.E. and Lisa Murkowski, R-Alaska, proposed a solution to the Supreme Court’s obvious struggle to follow basic ethical rules: an enforceable code of conduct. Unsurprisingly, Justice Alito, one of the most prolific beneficiaries of the current weak ethical rules, has stated that Congress does not have the power to regulate the court. His unbridled arrogance notwithstanding, statements like this are exactly the reason why the court’s approval rating has plummeted.
Justice Elena Kagan, ever the pragmatic peace-keeper, recently suggested that the court should impose its own ethical rules to avoid issues regarding the constitutionality of Congress regulating the court, remarking at a conference that “it just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else. We’re not imperial, and we too are a part of a checking and balancing system in various ways.” In the end, any court reform should be focused on long-term stability, not short-term gain, and ethical reforms fit that bill.
Too often, pundits champion the Supreme Court when it leans liberal but demonize it when it leans conservative. The Court represents the conflict between rival constitutional and judicial interpretations — whether the justices believe in interpreting the words of the Constitution literally or as a living and breathing document. And while rulings against abortion protections and affirmative action demolished federal protections, they do allow the states to formulate policy on such issues.
The composition of the court ebbs and flows with the political tide, but we must always respect its independence. The court plays a vital counter-majority role in America, and reforming it just because we disagree with some of its decisions undermines the entire idea of an independent court. It’s our duty as responsible citizens to reject petty political maneuvers like stacking the Supreme Court and encourage ethical conduct instead.
Opinion articles represent the views of their author(s), which are not necessarily those of The Dartmouth.