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

(SeaPRwire) –   Following rumors that Justice Alito might soon retire, congressional members were swift to outline their part in a potential confirmation. Senator Thune stated that Republicans “would be prepared to confirm” a nominee.

While those rumors have since quieted, the brief flurry of action should not be misinterpreted. On its core constitutional duty to check the Supreme Court’s authority, Congress is otherwise negligent.

The Court of today would be foreign to the nation’s founders. Throughout most of American history, the Court maintained a limited function and restrained ambitions. In contrast, the Roberts Court inserts itself into the heart of public disputes, aggressively targeting landmark laws and eroding fundamental rights. It acts with minimal accountability, both institutionally and for individual justices. This is not because the founders intended the Court to be entirely independent; it is because Congress has neglected its oversight role.

Congress possesses viable options to reinstate the Court to its appropriate position within our governmental structure. It has taken such action numerous times in the past, having altered justices’ responsibilities, established recusal standards, and even adjusted the Court’s size and jurisdiction. At a moment when an exceptionally powerful executive branch is challenging the rule of law as never before, the public requires a trustworthy Supreme Court. Confidence in the nation’s highest court is at a historic low in polls, a situation with potentially catastrophic consequences for the country. For the Court’s rulings to carry weight, the public must believe in its legitimacy.

This is the basis for our belief that Congress can and must exercise its authority to reform the Supreme Court.

One highly supported measure is the introduction of term limits for justices. Tenures have expanded dramatically in recent decades, granting justices extraordinary long-term influence over law and policy. A sitting justice could potentially serve through nine presidential terms. This conflicts with a fundamental American principle: that no individual should wield significant power indefinitely. Congress ought to legislate an 18-year term limit for justices, after which they would take senior status, permitting them to complete their constitutionally protected tenure with adjusted duties, a standard arrangement for lower-court judges.

Congress must also reclaim its position as the primary policymaking body, instead of allowing the Court to act as the ultimate arbiter of lawmaking and overturn decades of legislative achievements. The Roberts Court has invalidated historic and widely supported laws at an accelerated rate, from crucial parts of the Voting Rights Act to campaign finance regulations.

When Congress concludes that the Court has incorrectly applied or weakened federal law, it should respond by instituting an expedited Senate procedure. Similar to the Congressional Review Act, which provides a swift method for Congress to counter federal agency rules, this process would enable the Senate to pass legislation in response to court rulings by a simple majority within a specified timeframe. This would guarantee that voters, not appointed justices, have the ultimate authority.

Restrictions on the Court’s emergency docket are also necessary. Referred to as “the shadow docket,” the emergency docket now seems less about addressing genuine emergencies and more about issuing secret rulings on critical, frequently contentious legal matters through unsigned, unexplained opinions. The New York Times recently indicated that this shift was deliberate. It was a coordinated strategy initiated by Justice Roberts, starting with the shadow docket decision that halted President Obama’s Clean Power Plan.

According to the Brennan Center, in the past year, the Trump Administration asked the Court to employ its emergency docket to reverse lower court decisions a record 34 times—the Court issued 25 decisions on these requests, siding with the administration 80% of the time. Often, the nature of the alleged “emergency” was unclear. From our perspective, President Trump’s failure to disband an agency or halt scientific research funding does not constitute an emergency.

To prevent misuse of the shadow docket, Congress should establish legal standards to confirm the Court only hears cases involving real emergencies. It should also mandate that justices produce written, signed opinions for shadow docket cases, a move that would offer clarity, enhance transparency, and strengthen trust in the Court’s impartiality.

Lastly, although new confirmation hearings seem less likely now, any comprehensive reform must tackle the broken confirmation process. Since Senator Mitch McConnell obstructed President Obama’s Supreme Court nominee, arguing it was too near an election, only to rush through Justice Amy Coney Barrett’s confirmation after early voting had started in 2020, the process has devolved into increasingly partisan conflict. The nomination process should not be subject to the whims of the ruling party. Congress should implement a system to fast-track nominees after a set period of delay, guaranteeing all nominees get a fair hearing.

Congress holds the authority to make certain the Court fulfills its intended function and to reestablish equilibrium in our system of checks and balances. For the preservation of our democracy, it is imperative that Congress takes action.