The Supreme Court Is Towering Over Our Lives. Here Are Three Quick Fixes.

The Supreme Court’s reputation is at an all-time low, and for good reason. It just wrapped up one of the most consequential terms of the modern era, in which it dismantled voting rights, overturned one precedent after another, and ruled against some of America’s most vulnerable populations with seeming ideological glee. Half the country now disapproves of the court; a little more than one-third of voters approve of the job the justices are doing. And about three-quarters of Americans support Supreme Court term limits. Even the court’s final hurrah, the narrow striking of President Donald Trump’s executive order on birthright citizenship, seemed to satisfy no one.

This term has also revealed the profound philosophical mismatch between the court and the public. Conservatives, for their part, seem to see the justices as nothing more than a set of robed servants for their political projects. To these folks, the justices are not umpires there to call balls and strikes, as Chief Justice John Roberts once described them. They’re instead batters, and their job is to swing and hit a perfect 100 percent at bat for the party that appointed them. Take the Republicans throwing a pity party about Justice Amy Coney Barrett siding with Roberts and the Democratic appointees on birthright citizenship. With a straight face, conservatives are treating Barrett, the deciding vote for overturning a constitutional abortion right, as a secret liberal. To put it in the words of the founder of the conservative legal group the Article III Project, Republicans “just want dumb justices who will fall in line.”

As cynical as this is, the Supreme Court has given the GOP every reason to expect this level of conformity. It has bent the laws in ways that have shrunk the line between law and politics to an almost invisible sliver. Matters that make their way to the court each term read more like political wrestling matches than ordinary cases, like Republican National Committee v. Democratic National Committee, in which the court restricted COVID-era mail ballots during the 2020 election. Or National Republican Senatorial Committee v. Federal Election Commission, from this term,in which the six Republican appointees ruled in favor of the committee to overturn a 20-year-old precedent and strike down a campaign finance law that had limited contributions to political parties. And although the justices can’t control which parties bring lawsuits, they do control the bulk of the cases they take up, and they incentivize increasingly frequent partisan litigation with a mess of opinions that run on incoherent logic and bad history.

To remedy these ills, the court needs top-to-bottom reform. Let’s take three proposals placed along what might be called a 1–5–9 lens, each focusing on a different scale of the court. That is, what powers does a single justice have? What powers does a five-justice majority of the court have to issue decisions? Finally, why should the court have nine justices—should there be more or less, and how do we decide its makeup?

First, the singular judge. Individual justices can’t decide entire cases by themselves, but they are largely responsible for the work of deciding whether they should recuse themselves and when and how they should disclose massive financial gifts. The Supreme Court Ethics and Investigations Act, a bill introduced in Congress, would create a separate ethics and investigation office within the court. The alternative, as Ohio Rep. Greg Landsman mentioned in a letter to the chief justice, allows a world where we just have to wonder if anyone on the court is betting on opinions or retirements.

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Turning to the five, there’s the need to reform the court’s ability to issue major rulings on its shadow docket. For the first time ever this term, the court passed a secrecy milestone: More than half of its decisions came from emergency requests brought to the court to shortcut ongoing litigation in the lower courts. The high court’s decisions on these issues have a short written explanation if any at all. The opinions are labeled per curiam—they’re unsigned and fail to fully identify how justices voted and who wrote any opinion deciding whether to pause or set aside the lower-court ruling. The only way to figure out how the justices decided is if there were dissents. And dissents have been happening more frequently, as the court has made the shadow docket an increasingly important part of its job. What used to be a procedural quirk for death-penalty cases or noncontroversial decisions on procedural matters is now a blunt force used on every issue of national import when the Trump administration loses in the lower courts. Congress should address the shadow docket in three ways. First, it should require the court to prepare a written opinion for each nonunanimous shadow-docket decision it makes. Second, that opinion should identify how the justices voted, as well as the author, just as normal opinions do. Finally, Congress should clarify that outside of the immediate case the court is ruling on, shadow-docket orders cannot be used as precedent to establish legal principles. This last rule is perhaps the most important; it would prevent the court from providing under-the-radar expansions of the law as it tried to do in the aftermath of Callais.

Finally, let’s talk about the court as a whole. One way to fix things: Congress should pass a regular procedure for nominating and confirming justices. Rather than treating SCOTUS nominations as a free-for-all after a justice’s retirement, each president would be guaranteed a nomination during their first and third years in office. As part of this, the Senate would be required to hold a vote by a certain deadline after nomination; if the body failed to do so, then its constitutional advice-and-consent role would be considered automatically granted. If the Senate voted to reject the president’s choice, then the process would repeat with a new nominee under increasingly punitive timelines until the president’s choice is appointed. Congress can dictate the size of the court however it chooses, so there’s nothing preventing lawmakers from adopting a more fair system like this to increase the size of the court in an equitable, predictable way. Most crucially, as the number of justices increases beyond nine, the importance of each particular justice to American law shrinks.

Let’s pause on this third proposal, sometimes denounced as court-packing, because it serves more than a couple of vital goals. If this term has taught us anything, it’s that it would be great to live in a country where the idiosyncratic views of a single person wasn’t so meaningful for American lives and rights. But as of now they are. And that leads to a broken nomination process in which candidates seem destined to stall for two, four, six years—or as long as the Senate is of the opposite party as the president. And when the president and Senate’s party align, the people most capable of surviving the modern-day nomination process are those who are willing to get in the political mud and claw their way through. The ones who are likely to call out the other side for “high-tech lynching” or a Clinton-fueled conspiracy are on their way to lifetime appointments. This leads to a perverse system in which those who end up with lifetime appointments are the ones we least want to get them.

Each of these three proposals would improve the court by pulling its day-to-day operations closer to the lived experience of typical Americans. Reforming the shadow docket would mean that when we learn about a major decision that dropped the night before, the news articles we’re reading don’t have to guess at the reason the court issued an unsigned ruling. And broader reform would mean that voters could go to the polls, each and every presidential election, knowing that should their preferred candidate win, they will get a like-minded justice appointed to the court. These justices currently have an outsized amount of power to decide our fates, and it’s up to us to change that.

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