Wishes and Hopes: Top Ten Ways to Improve The Supreme Court of the United States
Next Monday, the Supreme Court starts its 2023-24 term amidst more than the usual share of controversy surrounding the justices. The public seems to strongly disapprove of the Court's landmark abortion decision that returned the issue completely to the political process. Moreover, just about every week there is new reporting about Justice Thomas's wildly inappropriate billionaire-paid lavish lifestyle, Justice Alito being Alito (publicly obnoxious and wrong), or one of the other justices trying unsuccessfully to defend the institution against charges of partisanship. The justices' approval rating is at an all-time low.
There are ethics, recusal, and term limit bills pending in congressional committees but the odds are low they will make it through both Houses, especially given the Senate filibuster and the GOP -controlled House of Representatives in an era where the GOP also controls the Court. Nevertheless, these days in America wishes and hopes are possibly our last, best currency.
Here are ten ideas that if adopted would dramatically improve how the Supreme Court operates in our political system even if these changes wouldn't change the result in a single case. Process, transparency, and responsibility are the cornerstones of good government, and the justices have a long way to go before they satisfy those requirements.
1) As many scholars have proposed, we need to end life tenure for the justices. The reason is obvious: never give a committee of nine government officials effectively unreviewable power for life. That is just a terrible idea. As Harvard Professor Emeritus Mark Tushnet has written, "everyone who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong. The existence of tenure until death or choice is extremely rare around the world."
Although conventional wisdom suggests Article III would need to be officially amended to make this change, that conclusion is not necessarily true. I do not believe the Constitution would be offended by the justices serving 18 year terms on our highest court, and then continuing to receive their full salary while hearing lower court cases (if they want to).
The American people overwhelmingly favor ending life tenure for the justices, and it is well past time to do so. This is the most important proposal on the list.
2) As everyone following the Court now knows, the nine justices on our highest court are the only judges in the country not bound by an enforceable ethics code. Whether the issue is gifts received by a justice, travel reimbursed for political fundraisers, spousal conflicts, or any other ethics issue, it is both a disturbing lapse and a national embarrassment that the justices are not bound by a fixed set of ethics rules. In a better world, the justices would create one themselves but if not Congress should condition large parts of the Court's budget on the adoption of a binding ethics code.
3) As I wrote here recently, the Court's complete lack of enforceable recusal rules is a disgrace. Right now the justices decide recusal issues on their own with absolutely no review. Although such recusal controversies are fairly common, in all of American history there have been only four memos written by Justices addressing recusal concerns. This gaping hole in the Court's rules and procedures should be filled as soon as possible, especially because Thomas and Alito seem to be spending so much time on Billionaire's Row.
4) There is no official record keeping of the important certiorari votes by the justices to hear or not hear cases. The rule that it takes four votes to hear a case is not even a formal written one. Yet, the Court's decision to hear a case or not is critically important to the institution and the country. Historians, the parties to the case, and the American public deserve to know this information. If nothing else, the Court should at the least reveal this information at the end of every term, if not before.
5) Justice O'Connor, once the Court's key swing vote, has stated that her case files will not be available until 50 years after the last Justice she served with is no longer on the Court. That would be Justice Thomas, which means we are at least 50 years away from seeing Justice O'Connor's taxpayer-funded papers. There is no valid reason for each justice to make up unique rules for what are the institution's and the public's papers. The justices should issue uniform rules for the Court's papers that do not sanction the hiding of their papers for extremely long periods of time after retirement or death.
6) The Court's oral arguments are open to the public (if one is lucky enough to grab one of the 250 seats that are reserved for the public). C-Span is willing to show the arguments at its own expense. As I've argued many times before, there is no good reason justifying the Court allowing very small numbers of the public to see its arguments while the rest of the country can only listen to them. This is the only reform on the list that I think might change sooner rather than later.
7) The Court ends its term every year on or about the last day of June. There is no reason for this fake deadline and it leads to rushed opinions and over-saturated news cycles during the last few weeks of every June. The justices are not children who need a summer vacation. They should issue decisions when the opinions are ready, not pursuant to an artificial schedule.
8) In recent years, the Court has relied more and more on its "shadow docket," often deciding important issues without the benefit of full briefing and argument. Of course, there will occasionally be emergencies that require fast action by the justices but in most cases there is time for full consideration. Professor Stephen Vladeck's book on the subject is an excellent resource.
9) Sometimes the justices will "DIG" a case, meaning it will dismiss a case now believing that the writ of certiorari was improvidently granted. This is a rare but mysterious procedure. As far as I can tell, there are no written rules or guidelines about how many votes it takes to DIG a case. Is it five so long as one of the justices who voted to grant in the first place changes their mind? Six? And what guidelines the justices use to make the determination whether to DIG a case? Would it be that hard to spell out the details of the procedure so the public can better understand the rules relating to DIGs? This may seem like a small issue but it reflects the Court's almost total lack of concern for the transparency of its own operations.
10) The confirmation hearings for the justices are, as Elena Kagan once wrote, "a vapid and hollow charade." The Senate should require the justices to answer real questions about their policy preferences and, if they do not, they should not be confirmed. If the Senate won't do this, it would be better to have no public hearing at all than the empty theater of Senate speeches and questions with no real follow-ups that currently make confirmation hearings completely worthless.
These ten suggestions might or might not affect the justices' substantive decision-making but they would greatly improve the Court's transparency and operating procedures. Maybe even more importantly, these changes would help the Court act much more like a court of law than a political veto council.