Key takeaways:
- The new term includes major cases on immigration detention, religious school funding, climate suits and voting rules. Many of the court’s biggest moves now come through the emergency “shadow docket.”
- The Constitution doesn’t fix the court at nine justices or clearly require lifetime terms. Congress controls the court’s size, budget and possibly its jurisdiction.
- Reform ideas range from adding new members and setting 18-year term limits to rejecting “judicial supremacy” outright, and they’re likely to gain traction if Democrats win both houses of Congress in the coming midterm elections.
This week brought the start of a new Supreme Court term, one that promises to continue the trend of the court’s conservative majority taking on contentious issues of culture and executive power and advancing a broadly right-wing ideological project.
Two of the cases on the docket concern immigration – one the Trump administration’s novel reinterpretation of a law mandating detention of “arriving aliens,” which it has used to indefinitely detain people who’ve been arrested far from the border, including many who’ve been in the country for years or decades; and the other its expanded practice of sending immigrants protected against return to their home countries to third countries they have no ties to instead. The justices will also decide whether localities must fund religious schools that openly discriminate against LGBT+ people, whether local governments can sue polluters for their role in the damage caused by climate change, and whether states can suppress votes under the guise of protecting elections by, for example, requiring people to present proof of citizenship like a birth certificate when registering to vote.
If recent past is prologue, the formal rulings of the conservative-dominated court will come down on the side of expanding executive power, letting industry run rampant sans regulation, and restricting rights for the rest of us. Not that the cases formally before the court are now even the predominant avenue by which it makes policy. For the past few years, many of its most consequential decisions have come via the so-called shadow docket, the emergency docket that was once upon a time used mainly for true emergencies like seeking a delay of an imminent execution. Now, it is where the administration runs to get sign-off to do things that in many cases have already been blocked by lower court judges.
It’s very likely that additional voting measures will make their way up to the court, as Trump and his henchmen have clearly indicated that they will seek to use executive power to mess with midterm elections in which Republicans are expecting a wipeout. The court stepped in to prevent a White House effort to have the U.S. Postal Service interfere with mail-in ballots, but who knows where it will come down on issues like any attempt to seize ballots to discredit Democratic victories. While the USPS decision and another on President Donald Trump’s efforts to create a federal voter database barred the government from using those measures in the midterms, they left open the possibility of their revival for 2028. And those moves come after a decision in May that appeared to complete the conservative majority’s gutting of the Voting Rights Act.
Breaking the glass
All of this further raises the specter and the likely popularity of court reform, an umbrella term for a variety of moves that have long been seen as kind of the “break glass” solution for the court’s increasingly open judicial activism. Among the most well-known of these ideas is the expansion of the Supreme Court itself. Contrary to common belief, nothing in the Constitution mandates that the highest court have exactly nine members, and indeed it has been expanded in the past. Most famously, Abraham Lincoln and his Republican allies in Congress briefly expanded the court to 10 justices, in large part as a result of the notorious Dred Scott decision that attempted to settle the question of slavery by depriving Black Americans of access to citizenship.
Size is not the only area of the court where reformers see possibilities. As many point out, the court began operations inside the Capitol building before Congress authorized construction of its own building, which was only completed in 1935. Congress sets the court’s budget and staffing, its size and potentially its purview. While federal judges, including those on the Supreme Court, have traditionally served lifetime appointments, that is also not necessarily required by the Constitution, which lays out very few specifics about the court as a body. Article III, Section 1 notes that the nation’s judicial power “shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges … shall hold their Offices during good Behaviour.” Section 2 deals mainly with jurisdictional questions, like noting where the Supreme Court has original jurisdiction, meaning the relative handful of cases that go directly to it.
The compromise option
In late 2021, the Biden administration released a long-anticipated report on potential court reform. It was viewed by most Democratic critics of the court as a disappointment, taking on issues including television cameras in the courtroom but steering clear of more contentious topics like expansion. Two and a half years later, in the months before the 2024 election, Biden wrote an op-ed in which he mostly still stayed away from endorsing or discussing significant changes to the court — kind of amusingly, he endorsed the idea of a binding code of ethics for the justices, a very low bar whose need was nonetheless highlighted around this time by a never-ending drumbeat of scandals around Clarence Thomas’ entanglements with billionaire pals like Harlan Crow — but did throw his support behind term limits.
In Biden’s view, justices could be limited to 18-year terms, something of a compromise that would help safeguard what is considered the core argument for lifetime appointments, that they enable justices to act outside purely political considerations and focus on interpreting the law without worrying about who is president and how to navigate their periodic succession battles. As we’ve seen, of course, these lifetime spots have not at all prevented justices from acting as political animals or making strategic decisions around their own terms. There’s the 2018 resignation of Anthony Kennedy, which enabled him to be replaced by Trump and a GOP Senate in advance of a blue wave midterm election. Now, Samuel Alito is reportedly considering doing the exact same thing, though he’s denied it.
Term limits are a little dicier legally insofar as the Constitution does have that language about judges serving during good behavior, which could be interpreted as only allowing judges to be removed in the event of bad behavior, through impeachment (yes, SCOTUS justices and indeed all federal judges can be impeached). Of course, that sets up a Catch-22 situation where the constitutionality of a measure involving the scope of the court’s power will ultimately be decided by … the court itself. Which brings us to perhaps the most ambitious and some would say extreme avenue to constrain the court, which is shifting the parameters of its jurisdiction.
Who gets the final word?
While the Constitution lays out what falls under the Supreme Court’s original jurisdiction, nothing about the language of Article III guarantees the court’s purview over all legal issues that could arise in the country. Indeed, the federal judiciary writ large is already barred by statute from reviewing certain matters, like the administrative decision-making of executive bodies like the immigration court system, so long as these decisions don’t violate the law or the Constitution. Congress could change aspects of this practice, such as by requiring that overturning duly passed federal laws only happen by unanimous decision, something that has been contemplated by some scholars.
The most ambitious of the reform ideas is one being put forward most notably right now by the Harvard Law professors Nikolas Bowie and Daphna Renan. They argue against what is termed “judicial supremacy,” the idea that constitutional questions are necessarily settled by the Supreme Court as the final arbiter – a role that’s not in the Constitution and that the court seized for itself. Under Bowie and Renan’s conception, no one branch of government is entitled to a monopoly on constitutional interpretation, and Congress should have just as much right to interpret the meaning of the Constitution. Put another way, if and when justices rule on a constitutional question — such as the basis of the Dobbs decision that overturned Roe v. Wade — the other branches don’t have to take the question as settled. How that might work in practice is that Congress could pass a law simply asserting its own interpretation, apart from whatever the Court has ruled, and that interpretation would then be controlling within the federal statutory scheme.
Any one of these ideas will probably be perceived as radical, but so is the court’s aggressive reshaping of American life, often by striking down laws made by what is supposed to be the public’s representative body. Even the generally cautious Hakeem Jeffries, who is increasingly likely to be the next speaker of the House, has said that he would like to see significant changes. If and when Democrats win the House and the Senate, you can expect court reform to be a big topic of conversation.
