October 22, 2021

This is Why ACS is Calling for Urgent and Specific Supreme Court Reforms

Russ Feingold ACS President


Russ Feingold
ACS President Russ Feingold

You’ve heard me talk about Supreme Court reform before, and the urgent need for it. This week, I want to provide more details about why ACS is prioritizing Supreme Court reform, and why we are taking the further step of supporting specific reforms, including adding seats to the Supreme Court and ending life tenure in favor of term limits for Justices.

The Court Is Disregarding Its Mission of Protecting the Guardrails of Our Democracy and Our Constitutional Rights.

Put simply, we no longer have a Supreme Court that can be trusted to uphold constitutional rights, democratic principles, and judicial norms. This is the result of the Right packing the Supreme Court and of the Court’s resulting conservative supermajority pursuing a staunchly partisan agenda that is increasingly indifferent to judicial norms and precedent. This is coming at tremendous price to our constitutional rights and to the constitutional guardrails that guarantee our democracy.

For instance, 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 rendered the Voting Rights Act toothless, and has OK’d partisan gerrymandering.

The Right’s packing of the Court is already proving determinative in the Supreme Court’s most impactful decisions. Think about that for a minute. Recent decisions, including last term’s Brnovich v. DNC, in which the Court upheld Arizona’s voter suppression laws along partisan lines, are coming down as they are because the Right stole two seats and swung the make-up of the Court far to the Right. In Brnovich, the Court’s conservative supermajority gutted Section 2 of the Voting Rights Act, making it even harder to challenge voter suppression laws that disproportionately affect voters of color.

This term, the Court is poised to do even further damage. Last month, the Court stood idly by as Texas disregarded nearly 50 years of precedent to empower private citizens to act as bounty hunters enforcing a blatantly unconstitutional abortion ban. Now, as millions of people in Texas are left without access to their constitutional right to abortion, the Court is set to hear argument in Dobbs v. Jackson Women’s Health Org. and potentially overturn Roe v. Wade.

If not for the Right’s packing of the Court, this Court would likely not be trampling over the guardrails of our democracy and constitutional rights like it is. The fact that their court packing has yielded such effective results incentivizes the theft of future seats, at further expense of the Court’s quickly deteriorating credibility and the public’s trust in this institution.

The impact of this legitimacy crisis is being disproportionately felt by people of color, women, and the working class, exacerbating existing inequalities within our laws and legal systems. Every indication is that the harm imposed by this Supreme Court will only increase in the absence of reform, with particular harm felt by the most marginalized.

How We Restore the Credibility of Our Court and Preserve the Legitimacy of Our Democracy

Both structural and non-structural Supreme Court reforms are urgently needed. ACS did not reach this conclusion lightly or quickly. But the recent actions of the Supreme Court leave reform as the only option if we are to preserve the credibility of the Court and, in turn, the legitimacy of our democracy. Our goal in advocating for Supreme Court reform is to return to a situation wherein we have a credible and legitimate Court that respects judicial norms and precedent, and upholds constitutional rights and democratic guardrails.

What do we mean when we say Supreme Court reform? We mean seats should be added to the Supreme Court to redress the Right’s packing of the Court. There are a variety of proposals for how seats could be added, and ACS is open to different approaches. The goal is to redress the Right’s packing and deter future theft of Supreme Cout seats. Senator McConnell has already stated his readiness to steal another Supreme Court seat, underscoring the urgent need for meaningful reform to deter further manipulation.

Supreme Court reform also means ending life tenure for Justices in favor of fixed terms.
In a democracy, it is antithetical to grant so much power to so few unelected individuals for so long. Currently, decisions that impact the lives of millions of people are often decided by a single “swing” vote. This is enormous power to give to one Justice – power that could be held for decades. Our founders could not have envisioned the day when justices routinely sit on the Court well into their 80s, resulting in individuals serving for decades on the Court. Ending life tenure alone will not solve the legitimacy crisis facing the Court, however, and must be combined with reforms that will redress the Right’s packing of the Court.

Reform also means non-structural reform, like restricting the Court’s use of the shadow docket. To be legitimate, the Court needs to be transparent about its decisions. Even as an un-elected body, the Court is accountable to the American people. It owes it to the public to be transparent, and this means providing explanations for its decisions, particularly those that impact the lives of millions of Americans.

Other important reforms could include requiring the Senate to devote a minimum number of days to considering a nominee to the Supreme Court and to vote on a nominee within a certain number of days. This would prevent the Senate from either jamming through a nominee or stealing a seat on the Court by refusing to vote on a nominee.

We Have to Stay Focused on Restoring the Court’s Credibility.

I appreciate the concern that Supreme Court reform, specifically adding new seats, could result in an endless series of changes to the Court. That said, the Right, specifically Senator Mitch McConnell, has made clear that it will do whatever it needs to advance its partisan interests, and in fact it already has done so. If Senator McConnell is willing to steal seats, he will not hesitate to add seats regardless of what happens now.

Our priority must be in undertaking the reforms necessary to redress the Right’s packing of the Court and to restore the Court’s credibility, rather than trying to anticipate what norms the Right may violate next. The alternative is to acquiesce to the theft of Supreme Court seats and to open the door for further manipulation.

In the coming weeks and months, ACS will be rolling out more content about Supreme Court reform, including constitutional analysis of specific reforms and the history of relevant issues. Our goal is to be a resource to those interested in learning more about Supreme Court reform and understanding why reform is necessary to restore legitimacy to the Court and to preserve our democracy. I look forward to working with you all to achieve this urgent and necessary reform.