SCOTUS Reform: Historical Attempts

By Tim Martinson, HM Summer Political Journalism Intern

In recent years the US Supreme Court has become a subject of great controversy amongst lawmakers on both sides of the aisle, as well as amongst activists. With the recent Dobbs v. Jackson decision that overturned the previous abortion rulings in Roe v. Wade and Planned Parenthood v. Casey, calls for reform have only increased. Particularly controversial for some was the contrast of the nominations of Merrick Garland and Amy Coney Barrett by Presidents Barack Obama and Donald Trump, respectively. 

In early 2016, conservative Justice Antonin Scalia passed away. Then-President Obama nominated Judge Merrick Garland to replace him on the high court. However, at the time, Republican Senate Majority Leader Mitch McConnell never scheduled confirmation hearings in the Senate for Garland. After Donald Trump was elected president he nominated Neil Gorsuch to replace Justice Scalia, who was then confirmed in 2017. Over four years after the death of Scalia, Justice Ruth Bader Ginsburg passed away. This left another seat for Trump to fill, in which he chose Amy Coney Barrett. In a swift process, the Republican majority in the Senate confirmed Barrett eight days before the 2020 elections (Feiner and Mangan 2022).

For various reasons, a large portion of the American population appears to have lost much of its confidence and support for the United States Supreme Court. According to a February 2022 report by Pew Research, before the announcement of former Associate Justice Stephen Breyer’s retirement, the American public had become more unfavorable in opinion toward the Supreme Court. The study found that favorability of the Court decreased by 15% amongst adults since prior numbers in August 2020 and 19% amongst those who identified as Democrats. Favorability also decreased among Republicans, dropping slightly in percentage points since August 2019 and then stabilizing in early 2021 at around two-thirds favorability. In the same study, data showed that around 84% of respondents believed that the justices on the Supreme Court should not bring their personal political views into their deliberations, while only 16% stated they believed the Court’s justices were already doing just that (Pew Research Center 2022). In a Gallup poll done in June 2022, the public confidence in the Supreme Court had dropped 11% in the previous 12-month period (Jones 2022). These results indicate that the American public at large has lost much of its faith in the most powerful court in the land, leading to some calling for various reforms to be carried out in the Supreme Court.

Perhaps the most well-known of these potential reforms is “court-packing,” or expanding the number of justices on the Supreme Court in order to allow the current president to nominate jurists of a similar ideological stance (Merriam-Webster). In order to get his New Deal initiatives passed and deemed constitutional by the Supreme Court, President Franklin D. Roosevelt made up a plan to pack the Court. This nearly came to pass with the Judicial Procedures Reform Bill of 1937, which would have allowed Roosevelt to appoint a new justice for every incumbent justice over the age of 70 years old, which at the time would have meant six new justices. However, Roosevelt’s court-packing plan was thwarted by Congress, particularly when the bill came to a halt in the Senate Judiciary Committee following a letter by then-Chief Justice Charles Evans Hughes describing the need for an independent judiciary. Swing justice Owen Roberts started voting closer with the more liberal justices at the time to support the New Deal legislation. At the same time, one of the conservative justices retired. This allowed Roosevelt to nominate a more supportive jurist, thus rendering the intent behind the court-packing plan moot at the end (National Constitution Center 2022). 

This was not the only type of judicial reform considered in the past by Congress. In order to reduce the workload of the Supreme Court, the so-called Judges’ Act of 1925 was passed, with direction from Chief Justice William Howard Taft. It created the modern certiorari system by which the Supreme Court decides which cases it hears each term, rather than getting cases automatically from appellate courts. Only certain cases received the prior automatic appeal to the Supreme Court under this legislation, which had previously become overwhelmed by lawsuits following World War I and the enactment of alcohol prohibition (Federal Judicial Center). A similar bill was the Supreme Court Case Selections Act of 1988, which further limited automatic appeals to the Supreme Court, in this case from high state courts relating to state or federal statutes. In turn, this continued to give the Supreme Court more control over what cases they desired to hear (Cockle Legal Briefs 2017).

Returning to the present day, following his election in 2020, President Joe Biden set up a presidential commission of legal experts in April 2021 to identify possible reform proposals for the Supreme Court after the controversial appointment of Justice Amy Coney Barrett. In their final report released at the end of that year, the commission went over several possibilities including the expansion of the Court, term limits for justices, and other actions such as Congress overriding judicial decisions or implementing a supermajority requirement for cases. The commission did not come to a consensus affirming or disapproving any of the reforms. The commission’s final report also covered court procedures, arguing that greater transparency in the Supreme Court might be beneficial, suggesting the release of legal reasoning for emergency rulings or an advisory ethics code for justices (Erskine 2021).

Currently, several bills have been introduced in Congress addressing the Supreme Court. This includes bills that would expand the number of seats on the Court, provide ethics codes for justices, and create a system for “senior status” on the Court to establish term limits (“H.R.2584” 2021; “H.R.7706” 2022; “H.R.5140” 2021). It is hard to say if such reforms might ever come to pass, but what can be said for certain is that this debate will not end anytime soon. The history of the Supreme Court is far from simple, and it is clear that the future will remain as such.

References

“Court-packing.” Merriam-Webster.com Dictionary, Merriam-Webster. https://www.merriam-webster.com/dictionary/court-packing. 

Erskine, Ella. 2021. “Presidential court commission approves final report, identifying disagreement on expansion.” SCOTUSblog, December 8. https://www.scotusblog.com/2021/12/presidential-court-commission-approves-final-report-identifying-disagreement-on-expansion/. 

Feiner, Lauren and Dan Mangan. 2022. “Trump takes credit for end of Roe v. Wade after his 3 Supreme Court justice picks vote to void abortion right.” CNBC, June 24. https://www.cnbc.com/2022/06/24/roe-v-wade-decision-trump-takes-credit-for-supreme-court-abortion-ruling.html. 

“How FDR lost his brief war on the Supreme Court.” 2022. National Constitution Center, February 5. https://constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2. 

“H.R.2584 – 117th Congress (2021-2022): Judiciary Act of 2021.” 2021. Congress.gov, October 19. http://www.congress.gov/bill/117th-congress/house-bill/2584. 

“H.R.5140 – 117th Congress (2021-2022): Supreme Court Term Limits and Regular Appointments Act of 2021.” 2021 Congress.gov, August 31. http://www.congress.gov/bill/117th-congress/house-bill/5140.  

“H.R.7706 – 117th Congress (2021-2022): Judicial Ethics and Anti-Corruption Act of 2022.” 2022. Congress.gov, May 19. http://www.congress.gov/bill/117th-congress/house-bill/7706.  

Jones, Jeffrey M. 2022. “Confidence in U.S. Institutions Down; Average at New Low.” Gallup, July 5. https://news.gallup.com/poll/394283/confidence-institutions-down-average-new-low.aspx. 

“Landmark Legislation: The Judges’ Bill.” Federal Judicial Center. https://www.fjc.gov/history/legislation/landmark-legislation-judges-bill-0.

“Public’s View of Supreme Court Turned More Negative Before News of Breyer’s Retirement.” 2022. Pew Research Center, February 2. https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/. 

“Today in Supreme Court History.” 2017. Cockle Legal Briefs, June 27. https://www.cocklelegalbriefs.com/blog/supreme-court/today-in-supreme-court-history-2/.