Are We Finally Letting Go of Our Learned-Helplessness Syndrome Around the Supreme Court?

On Tuesday evening, news broke that the Biden administration is planning to support several proposals for structural Supreme Court reforms that may include legislation to create enforceable ethics rules for the nine sitting justices as well as term limits. The same unnamed sources floated the possibility that Biden, in consultation with high-profile constitutional scholars, was also considering whether to call for a constitutional amendment to eliminate the broad immunity a Supreme Court decision earlier this month conferred on presidents.

Early Democratic reactions to the as yet largely speculative reporting have ranged from the tepid “Better late than never” to the lukewarm “Good luck with the whole DeLorean thing because these reforms were desperately needed back in 2016.” (I confess that the DeLorean reaction was mine.) Also, you would need the presidency, a filibuster-proof majority in the Senate, plus the House to make these dreams come true. (Democrats do not have all three.) And reforming the Supreme Court such that it cannot, say, immunize a president who commits crimes while in office feels as if it would have been a better idea before the court immunized the president who commits crimes in office.

This is all, in some sense, political signaling about a decision to run against the courts in the 2024 election, and in that sense it’s long overdue. The court’s approval ratings are at record lows, and the only thing that can at present rein in the court is a second term for Biden.

It is highly tempting to unload contempt and fury all over the Biden administration for its failure to realize in, say, the winter of 2021 that the six-justice supermajority that was groomed, financed, then foisted onto the court in defiance of long-standing norms would indeed shamelessly and brazenly work to protect those interests. (Oh, and then in several instances it would be wholly subsidized and rewarded by the Leonard Leo/Koch/oligarch industrial complex.) It neither defies imagining nor surprises anyone who has understood the scheme for several decades that the plan worked, even as the lawyerly class slept warmly through it, comforted by the hopes and dreams of a John Roberts court that was conservative, sure, but not criminally insane.

What the Biden administration has been channeling until now was merely the same can’t-do attitude it recognized in the general public. That reforming the court is not possible and never can be is the mother’s milk of American judicial denialism. The real question is, why did Biden choose this moment to spontaneously unlearn the hopeless acceptance?

Is there any real reason to believe that a sustained focus on Supreme Court ethics scandals, the untold horror of the term-ending destruction represented by the presidential immunity decision, the Colorado ballot-initiative decision, the demise of Chevron deference, and the cruelty of the EPA and homelessness cases might goose interest in actually reforming the court, as opposed to merely complaining about it?

Maybe. As the Washington Post’s Philip Bump shows today, citing new polling from Fox News, the public actually supports a big rethink of Supreme Court structural untouchability. Most Americans expressed support for a mandatory retirement age for justices and 18-year term limits. According to polling, Americans overwhelmingly back ethics reform and robust disclosure and other structural fixes. Why, then, is it so unthinkable for them to demand it?

To call for structural change would require a kind of systemwide cognitive reboot for American voters that seems almost inconceivable in the generalized torpor and despair of July 2024; it would necessitate asking an electorate that has in large part lost all confidence and trust in the high court whether it believes that something might genuinely be done to change it. Overwhelmingly, and for many years, the answer to that question has been a resounding no.

As in: We hated the result in Bush v. Gore, but what’s to be done; we hated the result in Shelby County, but, you know, shrug. We hated Heller, we hated Hobby Lobby, we hated Dobbs, we hated Bruen, and we hated the upside-down flags and the superyachts and the salmon fishing, but by all means let’s keep blaming Mitch McConnell and Ruth Bader Ginsburg instead of doing anything. And by all means let’s keep choking down whatever Judges Matthew Kacsmaryk and Aileen Cannon keep shoveling at us in the name of preserving “judicial independence.”

There are two fundamental ideas that would need to be jettisoned in a matter of weeks. The first is that this is what living in a free and fair democracy demands. That argument holds that nobody likes the imperial court and nobody feels great about the imperial court’s spontaneous creation of an imperial executive branch this past month, but these are the wages one pays for living in the freest, bestest, most perfectly conceived legal system in the world.

Except virtually no other constitutional court operates with only clothing-optional ethics rules, and with lifetime tenure, and with not even a theoretical possibility of impeachment or removal. Explaining to Americans that unfettered judicial behavior is the exception and not the rule demands a bit of international curiosity. Luckily, we have the data: As the report produced by the blue-ribbon presidential commission that studied structural court reform at the start of the Biden administration found, “the United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices.” The report further pointed out that “among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.”

Should this matter to American voters? Uh, yeah. The report also noted that “one scholar who testified before the Commission opined that, ‘were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”

Polling shows that two-thirds of Americans support term limits for Supreme Court justices. The same goes for judicial ethics reforms. The commissioners pointed out, as we all know, that “the Justices of the U.S. Supreme Court are the only members of the federal judiciary who are not covered by a code of conduct.” Most sane businesses are covered by a code of conduct! Judges and justices across the world are constrained by ethics rules that would preclude them from accepting millions of dollars in donor gifts, failing to disclose them, then lying about it. But not our highest court in the land.

Canvass any other constitutional court, and you will quickly discover that the current U.S. Supreme Court as structured is simply not replicated in the many, many functioning courts worldwide. As we learned from our great, brief national experiment in originalism, old ideas are just not always the best ideas. A court that slid, almost imperceptibly, over the past few weeks from protecting a democracy to fostering anocracy, is a staggering democratic development, and yet almost nobody took note? Constitutional normalcy bias is a hell of a drug.

The second fallacy that would need to be shaken out of us is the idea that the court is untouchable. This is the tale that holds that even if one were to acknowledge that the high court is turbocharging the end of democracy, nobody is doing anything about it. That is also wrong. Follow Sen. Sheldon Whitehouse and Rep. Hank Johnson, who have been working on these reforms for years. Listen to Rep. Jamie Raskin and Sen. Richard Blumenthal and Sen. Alex Padilla and so many other elected leaders, then research and investigate and sign up to work alongside some of the many, many, many, many, many, many, many, many, many extraordinary groups who have been working on court reform for a very long time. Not only is there a ton of work to do, but there are tons of great groups doing it. The commission report itself serves as the start of a blueprint for what needs doing. There is no reform effort in its pages that is not worth taking seriously, as the time for taking these things seriously is now.

If you are still marinating in the wrongheaded notion that these two ideas—that the high court needs reforming and that focused people can really work hard to reform it—are somehow aspirational and unachievable, consider that the one thing that is not theoretical is what happens when courts become part of the very machinery that destroys democracy. The Presidential Commission Report sounds the alarm over the fact that globally, court capture happens swiftly and decisively, even within constitutional democracies that once believed that their court system was perfected and insulated from abuse:

Developments in other parts of the world where manipulation of the composition of the judiciary has been a worrying sign of democratic backsliding. After his election in 1989, for example, Argentinian president Carlos Menem worked to draw greater power into the executive branch, and in 1990 he successfully added four new members to a formerly five-member supreme court. In 2004, Hugo Chavez in Venezuela reined in judicial independence by expanding the size of the constitutional court from twenty to thirty-two. In 2010, Turkish leader Recep Tayyip Erdogan’s populist party consolidated control over the Turkish constitutional court by expanding its membership from ten to seventeen and altering the process by which judges were selected. In 2010, the populist Fidesz Party won a narrow majority in the Hungarian Parliament and quickly went about consolidating power, including through the addition of several new seats to the constitutional court. In 2018, a package of judicial reforms in Poland forced sitting judges off the bench and dramatically expanded the size of the supreme court.

There is nothing theoretical about authoritarian capture of an independent judiciary. It happens all over the world. The same groups push some of the same efforts. Courts cannot readily defend themselves from being captured. But citizens can and must defend their courts. What President Joe Biden is offering—finally, huzzah, too late—is a framework for imagining what that could look like in the United States. It is a long-overdue call for citizens who have been lulled into thinking that the Supreme Court is uncheckable to stand up and participate, finally, in the work of creating meaningful checks.