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.
