Supreme Court Reform
Before the Supreme Court came under daily scrutiny of its judicial neutrality and ethical standards, it was under the microscope, along with other branches of government, in efforts to improve our democracy.
In 2020 the American Academy of Arts and Sciences published a report with recommendations from The Commission on the Practice of Democratic Citizenship. The report is titled Our Common Purpose: Reinventing American Democracy for the 21st Century. In 2019 the Commission conducted forty-seven “listening sessions” around the county hearing views on democracy from Americans of different demographic and political backgrounds.
The report included proposals for a wide range of democratic processes: Redistricting, campaign finance, voting and elections, citizen engagement, civic infrastructure, social media, and national service. Included was a detailed proposal for restructuring the Supreme Court. The recommendation proposed,
Establish, through federal legislation, eighteen-year terms for Supreme Court justices with appointments staggered such that one nomination comes up during each term of Congress. At the end of their term, justices will transition to an appeals court or, if they choose, to senior status for the remainder of their life tenure, which would allow them to determine how much time they spend hearing cases on an appeals court.
The report stated that federal legislators have the power to enact eighteen-year terms on the Supreme Court with the balance of their life service in lower courts with no loss of salary for the remainder of their careers. (Justices who retire under the current system automatically transition to senior status.) Each president would be responsible for two nominations during a four-year presidential term, resulting in a less partisan process.
In April 2021, President Biden created the Presidential Commission on the Supreme Court of the United States. Its 280-page report submitted in December 2021 by the 34-member commission, described various proposals for reforming the court, but was not tasked with making recommendations. The commission found bipartisan support for implementing 18-year term limits, but disagreement over expanding the size of the court beyond its current nine seats. The Biden Administration has opposed both reforms. Comments before the commission expressed belief that term limits could be perceived as founded on the view that judges are partisan, political actors, and would threaten the basic structural principle of judicial independence. Others simply did not want to change a practice that has worked well for over 230 years.
Since the report’s release, news sources have revealed unreported instances of questionable ethics by Supreme Court justices:
Annual luxury vacations provided to Justice Thomas and his wife by billionaire Harlan Crow
$80,000-100,000 consulting fees paid to Justice Thomas’ wife by a conservative legal activist
Legal recruiting by Chief Justice Roberts’s wife for placement of lawyers at firms that appear before the court
Property sold by Justice Gorsuch to the CEO of a law firm with regular business before the court
These recent disclosures prompted a Senate Judiciary Committee hearing on May 2, 2023, to discuss ethics reforms for the Supreme Court. Comments by both Republican and Democratic committee members expressed a desire for the court to be more transparent. The legality of Congress imposing ethics standards was questioned, an argument that was countered by a former conservative federal judge, J. Michael Luttig, and Laurence Tribe, a liberal Supreme Court litigator and Harvard professor.
The Committee invited Chief Justice Roberts to attend the hearing. He declined, citing “separation of powers concerns and the importance of preserving judicial independence.” Roberts attached a “Statement on Ethics Principles and Practices” signed by all nine justices describing the ethical rules they follow about travel, gifts and outside income.
As the debate on court reform expands, parties to the debate show no signs of agreeing to change from current positions.