Adding judges isn’t the only way to reform the Supreme Court

The recent leak of a draft opinion containing Roe v. Wade would oust has sparked discussion about changes to the Supreme Court‘s workings and structure.

The idea that is attracting the most attention is to expand the court beyond nine members. Those on the left say an expansion is needed to rebalance the court after Republican presidents and senators have secured a conservative majority for years to come. The right sees “court wrapping” as a political ploy that would harm the institution.

But there are other potential reforms that proponents suggest would improve government transparency, reduce partisanship and strengthen the Supreme Court.


Term Limits

The Framers determined that Supreme Court justices “shall hold office with good manners,” which should mean that they can serve for life if they so choose. Removing judges from the electoral process would theoretically separate their selection from the political process.

However, because the confirmation process has become politicized and even accounts for a significant portion of presidential campaigns, some observers have advocated setting term limits for judges.

A leading proposal provides for an 18-year term for judges. Under this plan, judges completing their term become “Senior Justices,” who could serve on lower courts and occasionally step in at the Supreme Court.

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Gabe Roth, Managing Director of Fix the Courts, explained the proposal in an op-ed for The Fulcrum:

The elegance of the 18-year plan is that each president can invariably nominate two of the nine judges per four-year term. In the event of an unexpected vacancy — for example, due to a death or medical emergency — a senior judge would step in until the end of the deceased judge’s term. When for example [Antonin] Scalia died four years ago, the court would not have been reduced to eight judges; Rather, the most recently retired judge, John Paul Stevens, would have taken his place until the next judge was confirmed.

Cameras in the courtroom

C-SPAN began broadcasting live congressional proceedings in 1979, but nothing like it has ever been heard before the Supreme Court. Audio recordings of hearings are made available by the court on the same day, but the United States is a video-centric nation (not just television, but now with YouTube, Tik Tok and more), and reformers believe live video would make court proceedings more accessible for the American public.

Opponents counter that live video could negatively impact court proceedings because judges could play into the camera. (Some people have argued that C-SPAN made Congress worse because lawmakers might tend to frame their remarks around soundbites rather than reasoned debate and collaboration.)

Many of the current judges Expressed interest in cameras in their courtroom, if not outright supportive when they got up for confirmation. Since then, some have changed their minds.

Here is Clarence Thomas during his 1991 confirmation hearing:

“I have no objection other than to make sure the cameras are as unobtrusive as possible… It’s good for the American public to see what’s going on there.”

But by 2006 his opinion had changed:

“It risks undermining the way we investigate cases. Certainly it will change our approach. And I’m not thinking for the better.’

Code of Ethics

The executive branch, including the White House, as the Office of Government Ethics. The House of Representatives and Senate each have their own ethics committees (as well as the independent Bureau of Ethics of Congress for the House of Representatives). And the judiciary follows the code of conduct of United States judges… except those rules don’t apply to the Supreme Court.

Reform advocates argue that a code of ethics should be created for the judiciary to protect it from improper conduct.

Fix the Courts, an organization dedicated to impartial reform of the federal courts, sees this as a critical part of their plan, writing on its website:

“Inquiries compiled by Fix the Court indicate that although none of the judges committed a moving offence, all nine of them were guilty of various ethical lapses in leaving financial assets from their annual financial disclosure reports partisanfundraisers decide cases even though they are credible conflicts of interest.”

A number of bills have been introduced in Congress to create a code of ethics for the Supreme Court, but most of them have not progressed. The For the People Act, which the House of Representatives passed before being blocked by the Senate filibuster, would direct the United States Judiciary Conference to create a code of ethics that would include the Supreme Court.

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