Democrats, including the highest-ranking elected Democrats, know the Supreme Court is a problem.
The Democratic Party’s longshot plans to deal with a Republican Supreme Court, explained
Top Democrats understand that the Supreme Court is a problem, but fixing this problem is nightmarishly difficult.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
It’s not just that the Court is controlled by Republicans who routinely derail and overturn Democratic priorities, although that is part of Democrats’ frustration. It’s also the constant drumbeat of outrages from this Court: the end of Roe v. Wade, Justices Clarence Thomas and Samuel Alito’s many ethics scandals, a decision giving presidents — and specifically former President Donald Trump — the power to commit crimes. These issues are driving the Court’s approval ratings into the toilet, and collectively, are putting the public’s belief in the legitimacy of the Court’s decisions at risk.
In the face of all this, top Democrats are starting to think seriously about what to do about the Court.
This is a new development, at least among elected officials at the highest reaches of the Democratic Party. Four years ago, some Democratic voters began clamoring for Supreme Court reform after Republicans placed Justice Amy Coney Barrett on the bench just eight days before the presidential election. However, future President Joe Biden poured cold water on these calls for reform — pledging instead to appoint a commission to study the issue. After Biden took office, he excluded outspoken proponents of reform from the commission and filled it with several prominent Republicans.
But Biden recently changed his tune, after the Court’s Republican majority ruled that former President Donald Trump has broad immunity from prosecution for crimes he committed while in office. In response to that decision, Biden embraced three proposals: term limits for justices, a binding code of Supreme Court ethics, and a constitutional amendment overturning the Trump immunity case, Trump v. United States.
Vice President Kamala Harris, the Democratic nominee to replace Biden, also supports these reforms.
Not long after Biden announced his proposals, the third highest-ranking Democrat in Washington laid out a more aggressive set of reforms. The No Kings Act, a bill introduced by Senate Majority Leader Chuck Schumer and co-sponsored by three dozen Democratic caucus members, would use a rarely invoked congressional power known as jurisdiction stripping to effectively nullify the Court’s Trump immunity decision.
The simplest, but also the most aggressive, solution to a partisan Republican Court is for Democrats to add seats to the Supreme Court and immediately fill them with like-minded judges. The Constitution permits Congress to determine how many justices sit on the highest court, and the number has varied from as few as five to as many as 10 over the course of US history. One bill, which predates the Trump immunity decision, would increase the number to 13 — allowing Biden to appoint four more justices if this bill were to pass immediately.
Sen. Ron Wyden (D-OR), a wonky, long-serving Democrat who chairs the Senate Finance Committee, recently introduced a more detailed proposal. The Judicial Modernization and Transparency Act would combine a 15-justice Supreme Court with ambitious ethics reforms and strict limits on the Court’s authority.
The bill would add the Court’s new justices over 12 years. And, among other things, it would require a two-thirds majority of the justices to agree before a federal law could be struck down on constitutional grounds (rather than just a simple majority, as is the current rule). It would also require the justices to submit to an annual IRS audit of their tax return, and it would require the full Senate to vote to confirm or reject any Supreme Court nominee after that nominee has waited 180 days for such a vote — thus preventing a repeat of Senate Republicans’ refusal to vote on President Barack Obama’s nomination of Merrick Garland to sit on the Supreme Court in 2016.
Realistically, none of these bills, or any of the other Supreme Court reforms that lawmakers offered in recent years, are likely to become law anytime soon. When I spoke to Wyden about his bill, he told me he is “very much aware that this bill is not going to pass unanimously tomorrow.” For now, Republicans control the House, and they are unlikely to support any significant reform of a Supreme Court that is firmly in their party’s control.
Depending on how future elections play out, however, political realities can change fast. The day may come when Republicans are in the minority on the Court, and so they become interested in Court reform. Or Democrats could win the kinds of majorities they need to rebalance the Court themselves.
But even if the status quo is maintained, calls for reform aren’t going away. Each new scandal and obviously partisan ruling seems to fuel fresh proposals to limit the Court’s power, to force the justices to adopt basic ethical standards, and even to strip the Court’s Republican majority of its power entirely.
The public is outraged, but Congress is paralyzed
The Supreme Court’s poll numbers started to fall in late 2020 after Justice Ruth Bader Ginsburg’s death gave Trump the chance to replace one of the Court’s four Democratic members. Ginsburg’s replacement, Barrett, was confirmed just days before the 2020 election, when voters threw Trump out of office.
According to the poll aggregator site 538, the Court’s numbers took a hit again in spring 2022 after a draft of the Court’s opinion eliminating the constitutional right to abortion leaked to the public, and again in spring 2023, after ProPublica dropped the first of several stories on Thomas’s penchant for accepting lavish gifts from Republican billionaires.
Today, a majority of Americans disapprove of the Court’s performance, and fewer than 40 percent of Americans approve.
Indeed, the simplest explanation for why so many senior Democrats are now shifting toward Court reform is that they are simply following their voters. A recent Marquette Law School poll found 90 percent of American adults support a strict ethics code for the Court, while 83 percent support term limits — and that includes 70 percent of Republicans.
The poll’s most astonishing finding is that a majority, 54 percent, of the poll’s respondents support Court expansion. Adding seats to the Supreme Court has been considered a political non-starter since President Franklin Roosevelt attempted it in 1937, and he paid a political price for doing so. Today, 71 percent of Democrats say they favor this once-forbidden policy.
Voters aren’t just quietly telling pollsters they dislike the Court when asked. Wyden, who does not sit on the Senate Judiciary Committee and has not historically been a major player in legislative fights over judicial reform, told me he decided to pull together his bill on the judiciary after he was “struck by what a cross section of Americans were saying” at the town hall meetings he hosts for his constituents.
He said he often heard voters complain about the Court’s “ethical issues.” Others said they felt “like they are in a time warp” watching this Court roll back longstanding rights. Many would “question the Supreme Court’s legitimacy.”
“When senators are home,” Wyden told me, “this is something they are going to hear about.”
Indeed, Wyden’s decision to introduce such a sweeping and ambitious proposal for Court reform drew my attention largely because Wyden has not been the kind of uncompromising Democrat who rallies behind radical solutions like court-packing. He’s a policy wonk, known for getting deep into the weeds of energy policy, or for working out a bipartisan alternative to Obamacare in 2008, when Democrats didn’t yet know if they would have the votes to pass a more ambitious bill.
Wyden, in other words, is neither Sen. Bernie Sanders (I-VT), the self-described socialist known for his aggressive proposals to grow the US welfare state and make the wealthy pay for it, nor is he Sen. Joe Manchin (I-WV), the moderate conservative from a deep red state, who, when he was a Democrat, was known for forcing the party to trim back their legislative proposals. Wyden, like Biden was during his time in the Senate, is right in the heartland of the Democratic Party. So Wyden’s aggressive proposal to reform the courts is a microcosm of the party’s own evolution on Supreme Court reform.
Realistically, however, Democrats must overcome three obstacles if they hope to pass any judicial reform legislation. The first is they have to actually control all three elected arms of the federal government: the House, the Senate, and the White House. This is particularly difficult because anti-democratic features of the US Constitution, such as the Electoral College and the fact that small red states have as many senators as densely populated blue states, effectively give extra votes to the Republican Party.
Then they’d need to convince a majority of lawmakers in both houses to support a single reform bill. The fact that senators in the heartland of the party, such as Wyden — not to mention party leaders like Schumer — support some kind of reform is a good sign for Democratic reformers. But unless the party wins enormous and unlikely supermajorities in both houses, they will need to also pick up lawmakers at the rightmost edge of the party.
Finally, they will almost certainly need to eliminate the filibuster, which currently prevents the Senate from passing any legislation other than taxing and spending bills without 60 votes. The Senate’s complicated rules actually permit Democrats to abolish the filibuster with a simple majority vote, but it is far from clear how many Senate Democrats actually support filibuster reform. During the current Congress, Manchin and Sen. Kyrsten Sinema (I-AZ) appeared to be the only holdouts in the Democratic caucus in favor of the filibuster. But after Harris recently endorsed filibuster reform, a handful of additional Senate Democrats unexpectedly criticized her for it.
If Supreme Court reform does happen, it will probably require a series of extraordinary outrages
There is, however, a fairly recent precedent for Democrats slowly coalescing behind a major institutional reform, despite a history of resisting that reform.
In 2007, Democrats regained the majority in the Senate after several years in the minority. At the same time, Sen. Mitch McConnell (R-KY) became the Senate Republican leader. Almost immediately, McConnell transformed the filibuster from an infrequently used tactic to halt matters that were particularly offensive to the minority, to an almost universal blockade against any legislation or nomination the majority supported.
A common metric used to measure the frequency of filibusters is to count the number of cloture votes, the process used to break a filibuster, in a given Congress’s two-year term. The number of such votes doubled as soon as McConnell became the GOP leader.
Yet, even after Obama came into office in 2009 and gave Democrats trifecta control over the House, the Senate, and the White House, Democratic senators were exceedingly reluctant to abolish or weaken the filibuster. That was largely because, in 2005, Republicans had pushed filibuster reform to prevent Democrats from blocking a handful of President George W. Bush’s judicial appointees, and Democrats had opposed this effort. In 2009, the same senators who’d been so opposed to filibuster reform four years earlier were reluctant to change their position.
Still, these Democrats softened their position as McConnell’s persistent filibusters repeatedly denied them victories. In the 2009–10 Congress, breaking a filibuster required at least 30 hours of Senate floor time, so Democrats often had to choose whether to spend the upper house’s limited floor time on passing legislation or on confirming Obama’s executive and judicial appointments.
Organized labor rallied hard behind filibuster reform in 2013 after Republicans blocked all three Obama nominees to the National Labor Relations Board. And, while Sen. John McCain (R-AZ) briefly negotiated a deal that broke this impasse, it didn’t last. Just months later, Republicans filibustered each of Obama’s three nominees to the US Court of Appeals for the District of Columbia Circuit, widely considered the second-most powerful court in the country.
Democrats decided they’d had enough, and they effectively changed the Senate’s rules to allow nominees to move forward on a simple majority vote.
The lesson here is that it took a series of outrages, including Republican filibusters that powerful interest groups within the Democratic coalition could not ignore, before Democratic senators slowly agreed that filibuster reform was necessary. If Supreme Court reform happens, it will likely happen in a similar way — with a series of outrages like the end of Roe and the Trump immunity decision nudging more and more lawmakers into the reform camp, until suddenly that group has the votes needed to make reform a reality.
