The Future of SCOTUS
The Supreme Court of the United States of America
By Riley Martinez ‘23
Even though the popular national conversation is focused on vaccinations, elections, and other time-sensitive topics, the debate around potential reforms for the Supreme Court of the United States continues to lurk below the surface. However, because the Supreme Court is often viewed as an institution of tradition and respected legitimacy—in fact, 68% of the American public has a fair or great amount of trust in SCOTUS—whenever possible changes gain traction, they become a key topic of contention.
Leading up to the 2020 presidential election, packing the courts proved to be a polarizing issue. Although the exact number of judges who are required to serve on SCOTUS is not explicitly outlined by the Constitution, the nation has maintained a standard of nine justices throughout most of its history. Increasing the number of judges on the court could easily increase its ideological homogeneity. This is because if the number of judges were to increase, then the current President would have first grabs at filling as many, if not all, of the vacancies as possible. Although President Joe Biden and Vice President Kamala Harris have had a history of dodging the idea, it remains an issue that could arise again going forward. In fact, Biden has recently created a commission to further study expanding the supreme court. Simultaneously, reports are circulating about Democratic Caucus members planning legislation to expand the courts. The conversation around Supreme Court reform will only grow from here.
Alternatives to packing the courts, with the same goal of ideological dominance in mind, also found their way to popular political discourse surrounding the 2020 election and should not be forgotten. Some presidential hopefuls, such as current mayoral candidate for New York City Andrew Yang, supported creating 18 year term limits. This would be a less radical change than packing the courts directly by attempting to remove life-long justices who yield enormous amounts of power despite age. It might also reduce any incentives for a partisan game of timely appointments. Senator Bernie Sanders of Vermont took an even more extreme position, instead advocating for a lottery system of judges. In this proposal, the Supreme Court would consist of rotating judges sourced from the federal appellate courts.
Although this conversation appears to be tabled for now, at least until COVID-19 subsides, the House Committee on the Judiciary has been eyeing reforms that would greatly impact the functioning, and thus the impact, of the nation’s highest arbiter.
On Thursday, February 18th, the House Judiciary Committee held a hearing to discuss contemporary issues with the court that would call for possible congressional intervention. The panel for the hearing included Amir Ali of the MacArthur Justice Center; University of Texas School of Law professor Steve Vladeck; Loren AliKhan, the District of Columbia solicitor general; and Florida State University College of Law professor Michael Morley.
Most of the hearing centered on changes to the Supreme Court’s “shadow docket.” The term was first described as “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Essentially, rulings from the shadow docket are still decisions on appeals that bind lower courts, but there is rarely an opinion or comments given by the judges -- hence the illusive “shadow” part of the term. Thus, questions to the legal panel of scholars centered around the ethical and practical nature of a silent powerhouse. The shadow docket is heavily scrutinized for allowing judges to avoid explanations on a decision for their own advantage, even if the ruling sufferers as a consequence. Critics’ arguments remarked that rulings that significantly affect citizens ought to offer an explanation to citizens. The court has even utilized the shadow docket for things as drastic as restricting voter rights.
The discussion of the shadow docket is growing in relevance as its usage has grown in recent years and is often responsible for the court’s most partisan decisions. In fact, critics have argued that the court is simply misusing the original purpose of the shadow docket, which was heavily discussed in February's hearing. With significant decisions, the purpose of the shadow docket is to provide swift and immediate relief to a situation, oftentimes an emergency, with extraordinary circumstances and “irreparable harm.” However, the legal panel introduced instances in which this justification and standard was questionably met. Thus, any form of congressional reform would attempt to reenact a higher emergency relief standard that the court abides by.
Although the shadow docket took front stage, the hearing also mentioned the possibility of smaller, but still significant to the operations of SCOTUS, reforms. These included reducing the timeline for appeals and the congressional authority to require SCOTUS to hear certain essential cases. The former of which is an attempt to coerce judicial efficiency while the latter has potential to shift the power dynamics between our branches of government. The resulting scenario of increased congressional oversight would undoubtedly be either a fruitful check to judicial power or a squabbling partisan extension.
Certain proponents of SCOTUS reform take stances even more drastic than those thoroughly discussed in popular political debates. One stance includes a bipartisan selection of the highest courts’ members, instead of appointment by the President. Another states the need for congressional override of unpopular and overreaching rulings. Ultimately, there are many politicians who seek changes to the court, but they have not reached a consensus on what those might be.
The Supreme Court of the United States and its future reforms remain unclear. Although many agree that something is wrong, little would argue that bringing changes to fruition will be an easy task. Still, potential reforms are important to explore in order to better understand how the court is currently operating, where it is slacking in its duties to the American people, and how to improve the functioning of our democracy going forward.