How to Rein in an Out-of-Control Judiciary
Interview: ‘This Is a Thing That Could Be Done,’ about the Supreme Court.
No one has “the” answer for a Supreme Court that has become the least representative, least accountable, and yet most reckless branch of federal government. I won’t again make the argument for why I think all three of those adjectives are appropriate. You can see it here and here.
—The summary is: The nine members of the Supreme Court are virtually the only Americans free to exercise such sweeping life-and-death power as long as they choose, on whatever logic they choose, for as long as fate allows.
As a bonus, they are the only members of the federal judiciary, and practically the only federal employees, not subject to conflict-of-interest, ethics, or financial-disclosure laws.
—The only limits on their power have been internal: a sense of ethics, propriety, precedent, restraint, institutional balance, and commitments they made when seeking confirmation.
Which is to say, for at least five of them, no limits at all.
Remember that one of them is married to a person who resists subpoenas about her role in the January 6 insurrection—while her husband rules on cases involving that very event.
It is hard to see how a democracy functions, long-term, with such limitless power in such unrepresentative and unaccountable hands. That is related to the critique that Elena Kagan made in her dissent from the disastrous ruling last week dis-empowering the Environmental Protection Agency, and is parallel to the case I made here.
Thus it is all the more important to look for partial answers, for steps in the right direction. That is the purpose of this post.
A ‘Plan B’ idea for the Court.
Yesterday a group called Fix the Court released proposed legislation with a Plan A / Plan B structure.
—The main effect of the law, Plan A, would be to enact 18-year fixed terms for Supreme Court Justices, as many groups (including the American Academy of Arts and Sciences and several U.S. Representatives) have proposed, and is long overdue.
—The innovation of the law is its “contingency” provision. The Constitutional validity of any term-limit rules might ultimately be appealed to the same Supreme Court whose members would be affected. And suppose they ruled against it? To keep themselves in their seats?
If that happened, according to this provision, Plan B would kick in: the Court would automatically be expanded, from nine members to 13. The logic of this approach was laid out by G. Michael Parsons, of NYU’s law school, in a detailed law-review article and an op-ed last year.
Parsons summed up the argument this way:
Popular plans [to reform the Court] get watered down to preempt legal concerns, while controversial policies dominate the debate based on their constitutional pedigree. For example, Fix The Court’s plan would require justices to take senior status after 18 years (a widely popular approach), but the plan exempts sitting justices to avoid potential legal issues. Take Back the Court, meanwhile, argues that packing the court is the only viable option because anything else might be invalidated.
But what if this choice between popularity and predictability is a false one? Rather than settling on one plan, Congress instead should use a rare legislative tool known as “backup law” to layer its policy preferences from most politically desirable to most constitutionally secure. If the court holds the first preference unconstitutional, the second will automatically take its place.
Yesterday I spoke with Gabe Roth, head of Fix the Court, about the reasoning and the politics behind this “backup law” approach.
A transcript of our talk is below; I will post the audio recording as soon as I can. The main point of the discussion is Roth’s emphasis that accountability for the court should be a bipartisan cause. Since the days of the Declaration of Independence, few Americans have wanted unaccountable robed figures to have sweeping powers over all of the rest of us.
Gabe Roth explains why a two-part bill, like the one he is proposing (based on Parsons’s articles), may be a practical way to start.
I have condensed this transcript of our talk, and added emphasis in bold, below.
James Fallows: Please tell me the back story on this proposal.
Gabe Roth: I run Fix The Court, We’re a nonprofit organization. We've been around for almost eight years. We worked on the Ro Khanna term limits bill in 2020 and 2021, that would have it so justices in the future would only serve for 18 years.
I'm always scouring the legal and academic world to see a lot of new articles and just see what people are talking about that I just got really intrigued by this idea from G. Michael Parsons, with the concept of the backup law. As the Supreme Court has become so powerful and so unaccountable, it would be a way for Congress to reclaim some power.
This idea of “backup law” or “contingent design” has just always sort of stuck with me. I feel like there’s just a lot of energy around court expansion, but I don’t personally think that that’s a solution. But I wanted to see if there was a way to bring that idea together with term limits. And I thought “contingent design” accountability would be a way to do it. It’s been running around in my brain for a while. It became more acute in the last two weeks after the awful court decisions.
Q: Forgive me for not knowing: Do you have a legislative staff background yourself? How did you know how to do this?
A: My background is, I went to journalism school for grad school at Northwestern, and then did local news and hated it. So then I went into political consulting and did that for about 10 years… I started something called the Coalition for court transparency, with cameras in the Supreme Court and then bring your cameras to the lower courts. That didn’t really go great.
I realized that it’s not the cameras issue that makes the Supreme Court the most powerful, least accountable part of our federal government. So I started my own group called Fix The Court. We’ve been working with lawmakers… We actually got a bill just signed by Joe Biden, the Courtroom Ethics and Transparency Act, that’s basically a STOCK Act for the judiciary. It means if you’re a judge, you have to put your financial disclosures online, and report your stock transactions within 45 days of a purchase or a sale. The Congress has had to do this since 2012. But the judiciary hasn’t had to. We got a law passed after the Wall Street Journal’s reporting on some of the ethical lapses and missed stock recusals…
So we do a lot of mostly bipartisan work. After I put up the proposal you’re asking about, the Khanna one and the backup provision, we’ve gotten a fair amount of calls from the Hill. People are interested in it.
I don’t know if anyone’s going to introduce it or if it will go anywhere. But I wanted to start by saying like, this is a thing that could be done. And then seeing where the interest goes from there.
Q: You mentioned you’ve been doing bipartisan work. Are there any Republicans you can name who’ve been interested in these kinds of measures?
A: We didn’t really start focusing on term limits until mid 2015. And we had we had a lot of support from Republicans. But then Donald Trump won. And it’s been basically silent since then.
There have been a few [GOP] House members here and there. I’m not going to discuss off-the-record conversations. But we’ve had a backbencher from Texas. A backbencher from Arkansas.
But back in 2015 and 2016 [before Trump], I was hanging out with Mike Huckabee and Ben Carson on the on the campaign trail, and they were talking about term limits. Ted Cruz wrote about it. Marco Rubio talked about it. Rand Paul. I went to Iowa in January 2016. And all the events that I went to, term limits would come up without me even asking about it. And that was really exciting, at the Republican events.
Now they don’t want to talk about court reform, even though the basic outlines of the 18-year proposal were put together by a co-founder of the Federalist Society. The great irony of this whole thing is that Steve Calabresi wrote the seminal article on 18-year term limits. And now the Republicans are like: ‘Oh, we're good. We don't need reform.’
Again the irony. I'm 39 So I would say for the vast majority of my adult life, I have associated movements for term limits with conservatives. It's conservatives who are introducing a Congressional term limits bill. It’s conservatives that are signing these pledges to pass term limit laws for legislatures in many states. But that's really shifted, at least for the Supreme Court.
Most of the work I did on Supreme Court term limits occurred when everyone thought Hillary Clinton was going to be president. I definitely had liberal friends at the time that were like, “What are you doing? Hillary's gonna win.” I'm like, “This is a nonpartisan idea, that the Supreme Court shouldn't be philosopher kings. They shouldn't be as old as the hills ruling from on high for three or four decades.”
I wouldn't say I’m surprised, but there's some disappointment that court reform has become such a partisan football. In fact both parties should want the vast majority of the decisions impacting our country to be made by their elected representatives, and not nine lawyers in robes.
Q: A question about ethics and accountability. As you mentioned earlier, there are ethics provisions for lower court judges. Is there any actual reason these cannot be applied to the Supreme Court? Or is it just custom and deference?
A: That's an open question. The current code of conduct for U.S. judges was written by the Judicial Conference. So that comprises lower court judges. You probably can’t have, you know, your Triple-A affiliate telling the major leagues what to do. I don’t know if you’re a baseball guy, but if the pitch clock is working for the Nashville Sounds, which is my Triple-A affiliate team growing up, it should work just fine for the Milwaukee Brewers, the Pittsburgh Pirates and the Chicago White Sox, et cetera.
But that’s the theory about why what exists for lower courts doesn’t apply to SCOTUS.
In terms of whether or not Congress could pass a law about court ethics, I think they absolutely could. It just hasn't really been tested. And when you look at other provisions of federal law that touch on judicial ethics, in a lot of cases the Supreme Court voluntarily follows them. For example, the Ethics Reform Act of 1989. William Rehnquist wrote a memo in 1991, around the time that went into effect, saying: We're not going to opine on the constitutionality of it. But we believe, as Justices, that the proscriptions against accepting gifts are reasonable, so we're going to abide by them.
And then back in 1978, the post-Watergate Ethics in Government Act required judges to file annual financial disclosure reports like members of Congress and members of the executive branch. Lower federal judges actually sued to be exempt from that. They thought it was too intrusive. It went all the way to the Supreme Court, but the Supreme Court declined to review it. What ended up standing was the lower court decision which said, basically: Guys, it's not that big of an imposition, you can like write down, you know, the fact that you own stock in IBM once a year. But the Supreme Court has never like officially applied it.
They know the writing’s on the wall in terms of ethics. To me, it’s a really weak argument that Congress couldn't impose an ethics code, or requires the justices to write one. If Congress has the power to set where the Court sits, when it sits and how much money it gets each year, and what type of jurisdiction it has which type of cases, it goes to follow that they could set some basic guidelines on types of behavior.
Q: One more question. I like the idea of the backup plan. I hope it passes. But suppose it doesn’t. What Is To Be Done about the Court?
A: Let me take a step back. I have an answer to that, but I want to paint it in another way.
I want to go back to when I was in Iowa in 2016. I was going to all these different [Republican] candidate events, and everyone was talking about term limits.
But then Scalia died, and Ginsburg got sick, and all the discussion changed.
If I go back to those times, and think about the way the Supreme Court has had all this power accumulating over the years, I would have assumed that in 2017 and 2018 there would be all sorts of proposals from Congress on how to rein in the Court’s power. The writing was on the wall. And Ro Khanna did introduce his bill. But there needs to be a much more full-scale public debate about what is the path forward, to rein in a Court that has outsized power.
And that to me is what part you know, part of the reason we're putting this proposal out is, we want there to be more folks in Congress discussing ways to rein in the Court. Congress has let atrophy the muscles that it has to rein in outsize judicial power. There may be multiple different ways of getting to the end goal of Article One government [the Congress] reclaiming its power. We need to get there,
I'm not naive, I don't think that this [backstop] bill is going to be passed in the next 180 or so days left in the Congress. But I think over time, as you see these different proposals out there, and especially once there's a Democratic leadership change, I think you'll have a chance of something going the distance. Clearly the term limits bill and the court expansion bill don’t have the support of the [Democratic] leadership now. But we need to think of creative proposals that might get their support, or get other folks to push the leadership on these existing proposals.
I think this is addition by addition and that over time, we'll get to the point where a majority of the majority realizes that something needs to be done.
Is this “the” answer? No, and Roth does not pretend it is.
But it is a place to start. It is a Thing That Could Be Done.
This is a "comment" from me, J. Fallows. Back in the olden days of blogging, I would run extensive "reader-mail" threads. I will probably re-launch such threads here. For a moment, here is a "reader mail" installment inserted as a comment.
The message below came from a person who is a graduate of the same law school as Clarence Thomas, Bret Kavanaugh, Samuel Alito, and Sonya Sotomayor. Like all of them, this person has been a senior Senate-confirmed government official, exercising significant power; people would recognize the name. Unlike Clarence Thomas and other fellow Yale Law grads, this person lacks life tenure.
I'll helpfully narrow it down: This is not Hillary Clinton.
Here is this person's contribution:
"The key is to delegitimize the Court, to take it down many notches.
"Packing it or reducing length of terms are ways to rebalance and then still use it to create (out of thin air say the Rs) and enforce rights. This is missing the point.
"We want to reduce the power of the Court to define how we live and how we organize with law the systems of power and entrenched wealth. So it's much more important, e.g., that the Court have an ethics code than that it have term limits, which of course are a good idea.
"It's much more important that the Court have reduced jurisdiction and be generally in disrepute than that its current members only (!!) get to serve another eighteen years."
I think the "in disrepute" part is taking care of itself, thanks significantly to the Thomas family. The argument about broader challenge to the court's hyper-elevated status is something I hadn't thought about so clearly; I appreciate my correspondent laying it out this way.
In the "coulda been a contender" spirit, I once was planning to attend this same law school. Better all around that I didn't, and that people like my correspondent did.
Let me just preface this by saying I am a liberal. I would like to be a progressive but realize that we have to live and work through the center and change necessarily and usually is slow. And I’m fine with that. I have been very resistant to the idea of court expansion but I am no longer. After these last few USSC decisions, I do not hold any hope of this court exercising any restraint. I do and have viewed this current court as a bastardization of a corrupt Mitch McConnell technical ploy which far exceeded any reasonable bounds of normalcy. Despite that viewpoint I was against court expansion for political reasons but Dobbs and the EPA decision have crushed any hope of a workable course/corruption correction. In my opinion, yes this is a political action taken on a body which is supposed to be the most apolitical, but it is truly within the legislative directives of Congress and would be an appropriate and necessary use of legislative discretion to expand the USSC. I would never have considered this had it not been for the total lack of decorum and normalcy on the Merrick Garland nomination which truly was an abomination.
All that being said about political necessity, it definitely can be a great opportunity to re-energize the checks and balances are system requires in an overall plan to modernize the transparency, accountability and sensible fiscal and efficient operations of the court. I applaud your bipartisan efforts and hope you realize that there are liberals out there who accept restraint and limits. But democracy is a delicate pendulum and right now, it’s conservatives who are putting not just their thumbs on the scales but their whole leveraged fists and the delicate mechanisms of democracy are quickly, and I fear soon irreparably, failing.
PS - And Citizen’s United has to go. Besides from the whole blacks and women thing not being considered needing representation by the founding fathers, my cursory US history and ideology background is “one man, one vote.” And a corporation, PAC and foreign business or government should not have any say in our elections or legislative process let alone “dark money.”