The Supreme Court is Dangerously Broken. Here’s How to Fix It

When rumors surfaced that Justice Alito could retire in the near future, members of Congress were quick to assert their role in a potential confirmation process. Senator Thune said Republicans “would be prepared to confirm” a nominee.   

Those rumors have since subsided. But we should not be fooled by that burst of activity. Congress is otherwise asleep at the wheel when it comes to its constitutional responsibility to serve as a check on the Supreme Court's power.  

Today’s Court would be unrecognizable to America’s founders. For much of our nation’s history, the Court remained limited in its role and modest in its ambitions. The Roberts Court, by contrast, thrusts itself into the center of public controversies, taking big swings at landmark legislation and undermining fundamental rights. It does so with almost no accountability, either as an institution or for individual justices. That’s not because our founders created the Supreme Court to operate independently; it is because Congress has abandoned that job.   

Congress has options here, sensible ways to return the Court to its proper place in our system of government. It has done so many times before. Congress has modified justices’ duties, created recusal standards, and even changed the Court’s size and jurisdiction. At a time when the rule of law is being tested like never before by an especially powerful executive branch, the public needs a Supreme Court it can trust. Americans' confidence in our highest court is polling at record lows, which could have disastrous implications for the country. The Court needs the public to believe in its legitimacy for its rulings to matter.  

This is why we believe Congress could and should use its power to reform the Supreme Court.  

A widely popular option is to enact term limits for Supreme Court justices. Average tenures have grown exponentially in recent decades, giving justices immense power to shape the law and politics for generations. A current justice could hold office for as many as nine presidential terms. This clashes with an American value: Nobody should hold too much power for too long. Congress should pass a law requiring 18-year term limits for justices, after which justices would assume senior status, allowing them to fulfill their constitutionally guaranteed tenures with modified duties, a common practice among lower-court judges.  

Congress should also reassert itself as the government’s principal policymaker rather than letting the Court continue to function as the final word in the lawmaking process and reverse decades of legislative progress. The Roberts Court has struck down historic, popular legislation at a rapid pace, from key provisions of the Voting Rights Act to laws regulating campaign finance. 

When Congress determines that the Court has misapplied or undermined federal law, it must act by creating an expedited process in the Senate to respond. Akin to the Congressional Review Act, which gives Congress a fast path to respond to federal agency regulations, this process could allow the Senate to pass laws responding to rulings by a simple majority within a certain number of days. This would ensure that voters, not unelected justices, have the final say.  

Congress should also place limits on the Court’s use of its emergency docket. Dubbed “the shadow docket,” the Court’s emergency docket today appears to be used less to respond to emergencies and more to secretly rule on pivotal, often controversial, legal issues with unsigned, unexplained opinions. The New York Times recently reported that this transformation in its use of the emergency docket wasn’t an accident. It was a concerted strategy driven by Justice Roberts, beginning with the Court’s shadow docket ruling blocking President Obama’s Clean Power Plan.  

The Brennan Center estimates that over the last year, the Trump Administration has asked the Court to use its emergency docket to overturn lower court decisions an unprecedented 34 times—of those requests, the Court has issued 25 decisions and ruled in the administration’s favor 80% of the time. In many cases, it has been difficult to understand what the “emergency” actually was. To us, Trump’s inability to dismantle an agency or freeze scientific research grants hardly seems like an emergency.  

To curb abuse of the shadow docket, Congress should codify standards to ensure that the Court takes up a case only when there is a true emergency. It should also require justices to issue written and signed opinions in shadow docket cases, which could provide clarity, increase transparency, and boost confidence in the Court’s independence.  

Finally, while new Supreme Court confirmation hearings now appear less imminent, any reform package must address the dysfunction of the confirmation process. Since Senator Mitch McConnell blocked President Obama’s Supreme Court nominee, claiming it was too close to an election, only to push through Justice Amy Coney Barrett after early voting had already begun in 2020, confirmations have increasingly turned into toxic displays of partisan gamesmanship. But the nomination process shouldn’t be at the whim of the party in power. Congress should enact a mechanism to fast-track nominees after a certain number of days of inaction, ensuring every nominee receives fair consideration.  

Congress has the power to ensure that the Court plays its proper role and to restore balance to our system of checks and balances. For the sake of our democracy, it must act on it.