Panel on Supreme Court Reforms Lauds Ideas of Term Limits, Ethics Standards

During the Democratic National Convention (DNC) this week, there have been many statements and speeches alluding to the restoration and protection of certain rights. But what’s been missing from many of them is the institution that has been largely responsible for the rescinding of the rights that are being discussed: the United States Supreme Court.

On Thursday, the Brennan Center for Justice hosted a forum featuring legal experts and lawmakers to discuss the High Court. Titled “The Supreme Court and the Future of Democracy,” the forum featured Melissa Murray, an NYU School of Law professor, as the moderator; Sen. Sheldon Whitehouse (D-Rhode Island) and Rep. Jamie Raskin (D-Maryland); Adrianne Shropshire, executive director of BlackPAC; Elie Mystal, justice correspondent for The Nation; and Michael Waldman, CEO of the Brennan Center.

The event started off with a simple question: why is there a sudden surge in interest in reforming the Supreme Court?

“There’s a fantastic ethics crisis taking place on the court,” Raskin said. “Everybody’s got their own billionaire sugar daddy, jetting them all over the world, paying for their vacations, private school tuitions. … The highest court has the lowest ethics.”

“There’s also a legitimacy crisis based on terrible decisions, very dubious appointments that are taking place, and also blockades” of appointments, Raskin added, referring to the blocking of Merrick Garland to the court in 2016 after he was nominated by former President Barack Obama.

Whitehouse also noted that the court’s decisions were very personal to voters.

“I think the Supreme Court got very real with the Dobbs decision,” Whitehouse said, referring to the case that upended abortion rights protections that had existed for nearly half a century under Roe v. Wade.

Other egregious decisions over the past decade were, of course, deeply disturbing, but the Dobbs ruling was less technical than those other rulings.

“When actual rights that Americans have are being stripped away from them by a court, that gets people,” Whitehouse said.

The ruling by the court to give presidents extra immunity standards — allowing them to commit crimes if they want to, without repercussions after they exit office, so long as they used an executive branch power — was also “so off-base from the way people understand what America is” that it was “almost like a mini-Dobbs,” Whitehouse said, adding that “it’s really bad and really shocked people.”

Mystal suggested that the openness to reforming the High Court was a result of conservatives essentially reforming the court for decades – following their failure to get Roe v. Wade overturned in 1992 with Planned Parenthood v. Casey.

Conservatives began saying to themselves, “we have to bring forth a new kind of Supreme Court justice, one who does not care about precedent, one who does not care about practicality and pragmatism,” Mystal said.

Indeed, far right justices aren’t “born” but rather “made” into the extremists they are, Mystal added, “made in the lab” by the Federalist Society. The shaping of their views was “designed intellectually to never allow Black people, women, the LGBT community, to have the full suite of rights guaranteed to them in the Constitution,” Mystal added.

“What’s happening now is that Democrats are getting the memo that the Supreme Court has already been reformed,” he said.

Shropshire noted that, for Black people specifically, the court has very much become a threat to their livelihoods, viewing the institution as a purveyor of white supremacy.

“We’ve been asking people, in our polls, this question for the past year: what is the single biggest threat to the Black community? In every poll, the single greatest threat that people identify is the election of Donald Trump. Second is white supremacy. There’s then a series of things that come next — lack of economic opportunity, lack of educational opportunity, etc.,” Shropshire said.

All of that changed with their most recent survey.

“We’ve been watching the Supreme Court climb up the ladder. We just came out of the field with a poll a couple of weeks ago. The list is now: the election of Donald Trump is the greatest threat, followed by the Supreme Court, followed by white supremacy,” Shropshire said. “I will say it’s because those three things are not unrelated in the minds of Black people, with the Supreme Court representing institutionalized racism.”

The panel also discussed recent proposals from President Joe Biden to reform the Supreme Court, including instituting staggered term limits of 18 years for each justice, ensuring that each presidential term will see two justices nominated on a regular basis, as well as creating an enforceable ethics code and passing a constitutional amendment to reverse the court’s presidential immunity ruling.

Murray noted that every major democracy in the world doesn’t have lifetime terms for their highest courts, and that 47 states in the country don’t have such standards either. Of the three states that don’t have limits on how long a justice can serve, two have age limits.

She asked the panel whether these ideas were enough.

“These [reforms] would be a big deal,” Waldman said. “We should understand the significance of President Biden doing this, given his long years working on this and his resistance to this kind of institutional reform of the court.”

Waldman added that, as a member of Biden’s commission on potential Supreme Court reforms, formed early on in his presidency, the group was told not to form any conclusions. Nevertheless, the commission found “considerable bipartisan support” for term limits.

The commission “was a way to learn that there was a national consensus on that issue in particular,” Waldman said.

But such changes, which would come from Congress and be signed by the president, could, in theory, be overturned by the current incarnation of the Supreme Court. Mystal said that, in order to ensure that doesn’t happen, it would also be necessary to expand the court.

“The problem is … [you have to convince] John Roberts that term limits are constitutional,” Mystal said, adding:

I support court expansion as the first step. … Court expansion is the thing that puts the rabid, conservative, supermajority to sleep long enough for us to reform the institution, and then do all the beautiful things we want to do, in terms of term limits and ethics reforms.

Notably, the Democratic nominee for president, current Vice President Kamala Harris, expressed an “openness” to exploring the idea of expanding the court when she was running in the party’s primaries in 2020.

Polling also shows that a majority of Americans would back the idea, too, with a Marquette University Law School poll from October showing that 54 percent were in favor of reform, with 46 percent opposed.