To Protect Our Democracy, We Need Supreme Court Reform Now
By Sam Cyrulnik-Dercher
Our courts need to work for everyone. Yet, after escalating ethics crises at our nation’s highest court, it’s clear that they are not serving all of us. In September alone, a staggering amount of reporting revealed more misconduct that has worsened this disaster at the U.S. Supreme Court, including:
- the many ways Chief Justice John Roberts deviated from court procedure to engineer his preferred result in Trump v. United States, which significantly expanded presidential immunity;
- the Judicial Conference’s shocking decision to loosen ethics rules by allowing justices and judges to accept lavish gifts of “personal hospitality” from billionaires with interests before the court — as Associate Justice Clarence Thomas has done for decades — with no requirement to disclose those gifts; and
- the revelation that Justice Thomas’s wife Ginni Thomas privately praised First Liberty Institute — a far-right organization that has been involved in many of our federal courts’ most offensive and extremist anti-civil and human rights decisions — for opposing efforts to create common-sense changes to help our judiciary better function, while the president of First Liberty called Justice Elena Kagan “treasonous” for endorsing enforcement of their ethics code.
Sadly, the scandals do not start — or end — here. Opponents of civil rights have spent decades implementing a well-funded agenda to roll back our hard-won progress, with devastating consequences: an extremist majority of the Supreme Court that has upended our most basic freedoms and justices who are beholden to their wealthy and powerful benefactors instead of being accountable to we, the people. Some Supreme Court justices flout their responsibility to the office they hold and the public they serve. Just one of many examples is that insurrectionist flags fly at the homes of Justice Samuel Alito while he rules on cases about the January 6, 2021 insurrection. The Supreme Court’s adoption of its own insufficient and unenforceable code of conduct in late 2023 has done nothing to address this crisis. It’s clear why public confidence in the Supreme Court has plummeted to near historic lows.
These problems can — and must — be solved. We urgently need meaningful and robust changes to bring more integrity to the Court and restore the faith in our judiciary that the misconduct of certain justices has eroded. The decisions made by Supreme Court justices and other lifetime federal judges are central to our ability to live free and full lives where our civil and human rights are respected. Addressing corruption and misconduct in our federal judiciary, including through structural changes to the Supreme Court, is an integral part of building an equal justice judiciary. This discussion is not an academic or theoretical one — rather, it is fundamentally about who our courts serve and recognize as worthy of having their rights protected. For our multiracial democracy to thrive, the public must be able to trust that judges and justices make decisions without bias and free from undue influence.
President Biden and Vice President Harris’s July announcement of support for Supreme Court reform, including 18-year terms of active service and a binding code of conduct for Supreme Court justices, was a welcome development. The Leadership Conference and many of our members and partners have advocated for changes that improve our judiciary, strengthen our democracy, and bolster our rights. We urge the administration and Congress to approach this work by engaging and centering the people historically marginalized by the federal judiciary and by focusing on solutions that would allow all people in America to participate in our democracy and have their rights recognized.
The Leadership Conference continues to urge the White House and Congress to build a federal judiciary that serves all of us and lives up to its promise of equal justice for all. There are many proposals that must be considered, including:
- 18-year term limits for Supreme Court justices. The extent to which some justices wield power with little accountability while rolling back our hard-won civil and human rights is at odds with the work of our movement to build a thriving multiracial democracy. Limiting justices to terms of 18 years of active service is just one of many common-sense structural changes that must be considered in order to strengthen our democracy and give us reason to trust that our federal judiciary will respect and advance the rights of all of us.
- A binding and enforceable code of conduct for Supreme Court justices. It continues to be unacceptable that the Supreme Court is the only federal court that has no binding ethical code of conduct. For democracy to function, the Supreme Court must have credibility with the public that its decisions are informed by facts and law, not wealth and power. It is imperative that all of our justices are held to a robust and enforceable ethics code. We must be able to trust that the nation’s highest court provides equal justice for all, and the ongoing misconduct and lack of a rigorous code of conduct has deeply damaged this trust.
- Bans on gifts to Supreme Court justices. People cannot trust that the Supreme Court is working for us and advancing equal justice when certain justices are secretly accepting lavish gifts from billionaires, extremists, and others with interests before the court. Instituting commonsense gift bans, similar to the ones that already exist for members of Congress, would reduce the outsized influence that a select few extraordinarily wealthy individuals have over justices. It would help to increase public trust in the Court, restore the integrity of our judiciary, and strengthen our democracy.
- Stronger recusal standards and transparency measures. To address the appearance of bias — and actual bias — in judicial decision-making, we need more transparency into justices’ behaviors and stronger standards to ensure that justices are recusing themselves from cases where they or their spouse have an interest in the case. This is another necessary measure to give the public reason to believe the justices are working towards equal justice for all rather than their own personal or political interests.
- Continued investigations into the reports of egregious ethics violations by Justices Thomas and Alito, as well as the broader undue and devastating influence of the rich and powerful on the Court and their agenda to undermine our civil and human rights. In order to fully understand the scope and details of the escalating ethics crisis, the U.S. Department of Justice and the Senate Judiciary Committee must continue to exercise their authority to provide ample oversight to these reports that some of our justices are abusing their power, undermining our system of justice, and destabilizing our democracy.
- Addressing discrimination, harassment, and retaliation against federal judiciary employees. These employees should be protected by the same civil and human rights laws as other federal workers, but currently they are not. Congress must pass legislation that protects judiciary employees’ rights — and increases transparency into allegations of and investigations into judicial misconduct.
- Selecting, nominating, and confirming highly qualified, ethical judges who have a demonstrated commitment to civil and human rights; possess diverse professional experiences including public interest work for economic, environmental, racial, and social justice; are fair-minded; possess a progressive vision of the law and Constitution; and are reflective and representative of the vast and rich diversity of our country. Every president must select outstanding judicial nominees, and the Senate must prioritize the prompt confirmation of these nominees. Creating a diverse judiciary that respects and upholds the rights of all people is a vital component of building trust in the courts’ decisions and our democracy.
- Expanding the number of authorized judgeships for circuit and district courts and considering other court structure reforms. The last time Congress significantly increased lower court judgeships to keep up with population increases was more than 30 years ago. With many courts burdened by exceptionally high caseloads, delays are compromising access to justice for people across the country. It is necessary for Congress to authorize new circuit court and district court judgeships to ensure that our courts can meet our current needs. Congress must also consider other structural reforms to help modernize our federal judiciary and ensure our courts are meeting the needs of the people they are supposed to serve.
These and other reforms are long overdue. Our multiracial democracy cannot thrive without them. To protect our rights and our future, we need comprehensive Supreme Court reform now.
Sam Cyrulnik-Dercher is the senior manager of the fair courts program at The Leadership Conference on Civil and Human Rights.