Confidence in the US Supreme Court is cratering — what to do?
Reform of the U.S. Supreme Court is likely to be a big issue in this year’s presidential election, and it’s not hard to see why. With President Joe Biden and others proposing fixes, an important question will be how to address problems with the highest court in the land.
Huge numbers of Americans lost confidence in the neutrality of the court in the wake of its 2022 decision that overturned Roe v Wade. It set off a political backlash across the country as women couldn’t get abortions — even in some cases in which minors were raped or women’s health was in jeopardy.
Opinions of the court have only gotten worse since.
In 2023, ProPublica revealed that Justice Clarence Thomas had a history of taking millions of dollars worth of undisclosed gifts from billionaires as he supported rulings that make it harder for the government to regulate the donors’ businesses. Such conduct might sound bribery-ish, but Thomas and a majority of the court have voted to make it a lot harder to prosecute public officials for that.
In 2016, the court ruled that it was OK for then-Virginia Gov. Robert McDonnel to hold a luncheon at the Governor’s Mansion so a guy who had lavished him with gifts could hawk a dubious miracle cure to state-supported universities. And in June, a majority ruled that it was OK for Portage, Ind. Mayor James Snyder to pay $1 million in taxpayer dollars for garbage trucks, leave office and then take $13,000 for “consulting services” from the company that got the business.
Seven in 10 Americans said the majority’s decisions were guided more by ideology than the law even before the court in July ruled that the president had broad immunity from prosecutions for things he or she does in office. The Constitution might have been written just after we threw off a king, but the July 1 ruling makes the president “a king above the law,” three justices said in a dissenting opinion.
In taking the case and handling it the way it did, the majority made it impossible to prosecute former President Donald Trump on charges that he tried to steal the last election before the coming one occurs. And Thomas and Justice Samuel Alito refused to recuse themselves even though Thomas’s wife was a vocal supporter of Trump’s attempted election theft and a flag flew at Alito’s home that appeared to signal sympathy with the overthrow effort.
This week, Biden unveiled his proposed reforms.
“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” the president said in an op-ed published in the Washington Post. “We now stand in a breach.”
In its broad strokes, Biden’s proposal would:
• Amend the Constitution to make clear that presidents are not immune from prosecution for crimes committed in office. “I share our Founders’ belief that the president’s power is limited, not absolute,” Biden wrote. “We are a nation of laws — not of kings or dictators.”
• Create a system in which presidents nominate a justice once every two years and limit justices’ terms to 18 years.
• Create an enforceable code of conduct under which justices have to disclose gifts they receive, refrain from public political activity and recuse themselves in cases in which they or their spouses have conflicts of interest.
A question now is how Biden balances those reforms against many, many other pressing matters.
Gabe Roth of the nonpartisan reform group Fix the Court said Biden even faces competing priorities when it comes to the judiciary. There are about three dozen nominees to lower federal courts who are awaiting Senate confirmation.
“There aren’t a lot of shopping days before Christmas,” Roth said. “There aren’t a lot of Senate days until Jan. 3, 2025, when a different Senate starts. From a priority perspective, I wouldn’t fault the White House if their emphasis for the next few months was on confirmations.”
However, if he chooses to make his reforms a priority, Biden could effectively sell it, Roth said.
“He has ample time to make the case to the American public why court reform needs to happen and what his vision for it is,” he said.
Roth founded Fix the Court a decade ago and he said Biden and many others are late to the reform movement.
“Frankly, he should have been doing this for his whole career,” Roth said.
He added, “The broad themes of Fix the Court haven’t changed in the last 10 years. I’ve always been a small “d” democracy guy. I came of age during Bush v Gore (which awarded a razor-thin election to George W. Bush). The idea that the Supreme Court had so much power that it could pick a president… Citizens United (which allows unlimited corporate spending in politics) came out before Fix the Court started. Just the overwhelming power the court has gained. This isn’t the start of the story, the court has continued along a trajectory.”
To reduce that power, Roth has reform proposals of his own.
One is to end the ability of district court judges to issue national injunctions.
U.S. District Judge Matthew Kacsmaryk, a Trump appointee, has been frequently in the news for controversial injunctions. Located in Amarillo, Texas, he’s the only judge in his courthouse and advocates of conservative religious causes often file cases there on the assumption that they’ll get a sympathetic hearing in Kacsmaryk’s court.
Last year, he struck down Biden administration protections of LGBTQ employees and the FDA’s approval of a key abortion drug, mifepristone.
Roth said such power in a single pair of hands gives still more power to the Supreme Court because it can choose not to act and leave the injunctions in place — regardless of the harm they cause — and not take the same heat they would if they heard the case and issued a similar ruling.
“That is a single judge in a single district out of 94 districts out of a country of 330 million people — a single judge out of a judiciary of 2,300 judges — saying no more to whatever the nationwide policy is, whether it’s (Trump’s 2017) Muslim ban or mifepristone or whatever,” Roth said. “The idea that a single judge has that much power will trickle up to the Supreme Court because the court can say whether this ruling is kosher or not.”
As for ethics, Roth said the entire federal judiciary’s ethics code has loopholes you “could fly a private plane through” that need to be closed. Toward that end, the High Court Gift Ban Act has been introduced in Congress. It would limit judges’ gifts to $50 — the same amount as Congress.
His organization is advocating another measure specifically for Justice Thomas, who has accepted at least $2.4 million worth of freebies from parties that sometimes have business before the court and often have a financial interest in its rulings.
“I think (Attorney General) Merrick Garland should appoint a special counsel to investigate the Thomas gifts,” Roth said.”‘Bribes’ is a loaded word. But at the very least it’s very clear that Thomas has been willfully violating the Ethics in Government Act by omitting these gifts from his financial disclosure reports for decades.”
He added, “This is a pattern of willful omission and under the law, there are consequences for this. Judges and justices can be fined. There are even criminal penalties. I don’t think we should do criminal penalties because I don’t think we’ve reached the point where Justice Thomas should be in jail. But there are civil penalties that are part of the law — $50,000 per violation — and I think Attorney General Garland should appoint an investigator to determine the extent to which Thomas has violated this law.”
Marty Schladen has been a reporter for decades, working in Indiana, Texas and other places before returning to his native Ohio to work at The Columbus Dispatch in 2017. He's won state and national journalism awards for investigations into utility regulation, public corruption, the environment, prescription drug spending and other matters.
Ohio Capital Journal is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
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