The Supreme Court is the most powerful court of law that exists in the United States.
Its decisions profoundly shape the lives of every American.
We've given a lot of power to the court to resolve questions that are really important in our democracy.
So a lot of things in which we are polarized or divided, it is the Supreme Court that effectively is the
arbiter of those things.
Some experts, however, find such immense judicial power problematic.
I like to call it the most powerful, least accountable institution in Washington, D.C.
Congress and the executive have been dysfunctional for most of my adult life.
So with that power vacuum, the Supreme Court is more than happy to take up that role as being the most
powerful institution in Washington.
As a response, calls to reform the nation's highest court have gained momentum in recent years.
The Supreme Court is in drastic need of reform.
In its current form, it is an incredibly destructive, anti-democratic institution.
But not everyone agrees that the Court is in need of drastic transformation.
I think the criticism of the Court right now says at least as much, maybe more, about the critics than it does about
the court itself.
Some of the claims of reform seem to me to be partisan medicine
for the claimed partisan sickness of the Supreme Court.
So is the Supreme Court too powerful?
And if so, how can it be fixed?
All the justices of the Supreme Court are nominated by the president and confirmed by the Senate to hold their offices
under life tenure.
This system is designed to insulate the court from political pressure, but it could be problematic.
Justices used to serve on the Supreme Court on average about 15 years up until about the seventies.
But since then, justices have served on average close to double that: 27 or 28 years.
The public has very little, if anything, that they can do to change the views or to replace Supreme Court Justices.
And so just from just even setting aside substance, just that system of governance, allowing the final word on
important issues to individuals that completely lack democratic accountability, that is incredibly unhealthy just
for a democracy.
Supreme Court justices are also the only federal judges who are exempt from the judicial Code of Conduct, designed
to maintain the integrity and independence of the court.
There's no ethical code. There's no guidelines for character that exists for the highest court in the land.
Just in general, if you're a member of Congress or a member of the Executive Branch, you have certain rules of the road
of what it means to be a public servant.
And the Supreme Court is exempt from almost all of them, on gifts and personal hospitality and travel and disclosure.
In 2022, chief justices were salaried at $286,700, while associate
justices were paid $274,200.
But justices also have other streams of income, usually through book royalties and teaching fees.
We know very little about their finances.
We only get financial disclosure reports from them once per year, which lists some vague details about
debts and real estate and financial holdings.
So far, I think the existing reporting requirements for the justices are doing a good job.
After all, they give rise to debates every time a new round of disclosures comes through.
But I think we ought to remain aware of the importance of this issue and always be looking for room for improvement.
Justices are currently allowed to trade stocks of private companies, which could create a conflict of interest.
Justice Stephen Breyer came under fire in 2015 after failing to recuse himself in a case despite his wife's
ownership of stock in the company involved.
All nine justices own IRAs, retirement accounts, blended funds,
mutual funds, bonds.
But the fact that on top of that, three justices, for whatever reason, and I've asked and I haven't gotten a good
answer, own individual stocks that are invested in corporations like Cisco and
Raytheon and 3M and Boeing and PNC.
Why is that? What's the point?
The three justices did not respond to CNBC's request for comment.
It's a real head scratcher as to why they would choose to participate in the market in a way that
could get them in trouble and could render the Court less powerful for major business decisions.
Despite the Court's emphasis on impartiality, the ideological and political biases of the justices
remain a topic of controversy.
Since justices are appointed through a political process, it's understandable that over time, if the parties begin to
disagree over what the Constitution means and what the court ought to do, then their appointments to the Supreme
Court would disagree more and more.
Justice Thomas, Justice Alito, Justice Roberts all worked in Republican administrations, whether it be the Reagan
administration or the Bush administration.
Gorsuch and Kavanaugh as well worked in those administrations.
And on the liberal side.
Justice Breyer worked for one of the most liberal senators, Ed Kennedy.
Justice Kagan was President Obama's chief legal officer, the Solicitor General.
So each of the justices has a long history within the political parties.
So it's not that surprising that their decisions would come out as heavily partisan.
I don't think this says much about the justices becoming more partisan.
I think rather it says more about people seeing the justices through a partisan lens.
13 of the 16 confirmed kustices since 1980 have been confirmed by the same party that nominated them.
A 2018 study found that Supreme Court justices are more likely to vote based on their ideology when it came to
pivotal votes.
While an overwhelming majority of adults believe that Supreme Court justices shouldn't bring their own political
views into their cases, just 16% of them believe that current court did a good job in keeping their views out of
their decisions. According to the Pew Research Center.
In recent years, it's become much more predictable in terms of how individual justices will vote based on
the party affiliation of the president who appointed them.
Desegregation in 1954 was a 9-nothing decision.
And abortion in 1973 was a 7-2 decision with compromises between the left and the right.
That doesn't really happen nowadays and everything that the average American cares
about, pretty much, there are a few exceptions, same sex marriage was an exception, Obamacare was an exception, but
everything from voting rights to guns to voter registration and election law,
that is breaking down predictable partisan lines and more and more Americans are seeing the Supreme Court as just
an extension of our dysfunctional politics.
For many decades, people just sort of assumed like, well, that is the system we have, what can you do about it?
And so I think just the sheer act of questioning the institution itself helps create the political possibility of
change because you realize that these things aren't set in stone.
One reform that I'm particularly focused on and interested in is the question of term limits.
And that's the idea that justices would not serve for life, but they would serve terms.
They could be 12 year terms, they could be 18 year terms.
It would in part undo some of the arbitrariness or historical contingency of which presidents get to appoint a
justice or numerous justices.
It would also help deal with this issue of strategic retirement, in which we see the sort of high stakes sort of
political nature of the decision about whether or when for a Supreme Court justice to retire.
Democrats have already made an attempt at setting a term limit with the introduction of the Supreme Court Term Limits
Act in 2020.
It hasn't gone anywhere in either Congress.
Republicans really used to like term limits, and then Republicans took over the Supreme Court and they're like,
Nah, we're good with the current system.
Meanwhile, a U.S.
House committee advanced a bill extending the Judicial Code of Conduct to Supreme Court justices in May 2022.
I think the proposal for the establishment of a code of ethics for the Federal Judiciary,
which already exists, but expanding that to cover the U.S.
Supreme Court is legitimate and logical and fair-minded.
The Judiciary and the Supreme Court more specifically has declined for years to improve the
ethics and recusal rules.
So it's really Congress's job to step in and step up.
And that's what they've done with the Supreme Court Ethics, Recusal and Transparency Act.
And I hope it continues to advance.
Another possible reform involves stripping the Supreme Court of jurisdiction to drastically reduce its power.
Congress can absolutely constrain the jurisdiction of the Supreme Court, or it can pass laws.
It can pass a voting rights law that says, sorry, Supreme Court, this is unreviewable.
Either just withdrawing those cases from courts entirely or alternatively sending those cases to administrative courts,
courts within federal agencies, for example.
So rather than having the Supreme Court or federal courts hear cases concerning a federal abortion statute, we could
channel those cases to the Department of Health and Human Services.
But perhaps the most widely discussed option on the left is court packing or expanding the size of the court.
The U.S. Constitution never states how many justices could serve in the Supreme Court, and the court already has a
history of changing the number of justices six times before settling on nine justices in 1869.
The idea is that Republicans engaged in a set of norm violations by not moving forward on
nominees and essentially themselves packed the court.
And so a corrective for that is either temporarily or permanently
to expand the size of the court, even apart from
those arguments about norm violations, there are arguments that our court should be bigger.
You would allow for more variety of justices.
There would be more diversity.
But not everyone is in a rush to dramatically transform the Supreme Court.
I think one of the real dangers of our political environment right now is that disagreements over outcomes, disagreements
over policies or laws, quickly blend into disagreements over legitimacy.
We're seeing more and more attacks on the Court's outright legitimacy, arguing that the justices are not legitimate
because they're not reaching the outcomes that particular people would like.
Attacks on the legitimacy of the Court can often bring dangerous consequences.
First of all, and most bluntly, attacks on the Court's legitimacy can give rise to radical actions
by unhinged individuals.
And we saw that recently with the the attempted murder of Justice Kavanaugh in Washington, D.C., over the leaked
draft opinion in the pending abortion case.
Second, I think attacks on the court's legitimacy ease the way for people to slide into
truly dangerous reform efforts with respect to the court.
For instance, packing the court has been widely criticized for the possibility of swinging the court further into
partisanship.
I think adding four justices because some liberals want to isn't really a good enough
reason. And then the conservatives would add six justices and then the liberals would add eight, and then we'd have a
court of 89 justices pretty soon and then what's the whole point?
It would convert the Court into an explicitly political body, perhaps by seeking
political or partisan balance among the justices.
Imposing term limits could also pose logistical challenges that would require amending the Constitution.
It is constitutionally improbable, probably constitutionally impossible.
In Article Three of the Constitution it says that justices serve for good behavior.
So unless you're impeaching a justice or a judge, they should not be removed from
the court.
So that requires any advocates for term limits to anticipate and
propose not just the policy of term limits, but a constitutional pathway
forward for achieving that particular proposed reform.
Any reform must be considered with caution as it could potentially do more harm to the institution than good.
Rushing to reform the Court, especially to respond to its decision
making in a particular area, would risk sacrificing an institution
that is cherished, an institution that is constitutionally mandated,
an institution that is functionally necessary for a thriving constitutional democracy.
I agree that it's not always clear what the consequences will be of reforming the court, but I believe
there should be at least a public discussion about many of these contemplated reforms and that many of them
are easy to adopt and really should not be contested, like the ethical reforms to the Court and
some of the transparency reforms that would make oral arguments, for instance, more visible.
Nonetheless, continuing to question and improve the Supreme Court will be essential in upholding the democratic
values of the United States.
I don't think that we should think about the Court as an unchangeable part of our democracy or of our
Constitution either.
These are things that we, the people, have to authorize and and
have to agree with.
It's definitely an uphill battle, especially in these hyperpartisan times.
But that just means that this mission is all the more important to be sure that we have a Supreme Court that we're
proud of and is responsive to what all 330 million of us want, not just the
whims of the nine.