“The last major push to reform the Supreme Court, which has been comprised of nine justices since shortly after the Civil War, came during the presidency of Franklin D. Roosevelt”
WASHINGTON, DC – The US Supreme Court has become a political flashpoint in recent years, triggering growing calls for reform, but enacting substantive institutional change in such a polarized climate is close to impossible, analysts say.
Democratic President Joe Biden unveiled proposals Monday (Tuesday Manila time) to reform the nine-member court, which has lurched sharply to the right with the nomination of three conservative justices by his Republican predecessor, Donald Trump.
Wielding a 6-3 majority, conservatives have stripped the nationwide right to abortion, weakened environmental protections and federal agencies and granted Trump’s claim that an ex-president has broad immunity from prosecution.
Tracy Thomas, a law professor at the University of Akron, said a substantial proportion of the American population has lost confidence in the court, a view borne out by recent opinion polls.
A Marquette Law School poll released in May found that just 39 percent of American adults approve of the job the Supreme Court is doing, while 61 percent disapprove.
A majority of Republicans — 57 percent — approved of the court’s performance, as opposed to just 23 percent of Democrats.
“This all really started with Bush versus Gore,” when a conservative-majority court settled a 2000 election dispute between Republican George W. Bush and Democrat Al Gore in favor of the Republican candidate, Thomas said.
“That is the first time in my lifetime that we started to see the court as blatantly partisan,” Thomas said.
Six current members of the court were nominated by Republican presidents, while three were named by Democrats.
Keith Bybee, a Syracuse University law professor, said 6-3 rulings such as the immunity decision make the court appear more partisan in its decision-making.
“But also, this majority is quite emboldened,” he said, rendering decisions that are “quite sweeping and overturn decades-old precedents” such as in the case of abortion.
“Those two factors together prompted a lot of concern among the Democratic Party about the power of the court,” Bybee said.
Biden’s proposals call for 18-year term limits for Supreme Court justices, who are currently appointed for life, an enforceable ethics code and a constitutional amendment that would reverse the court’s presidential immunity ruling.
A constitutional amendment is a “long shot” in the current political climate, legal experts say, in that it would require passage by two-thirds of both chambers of Congress and three-fourths of the state legislatures.
“That’s why we have so few amendments of the Constitution,” Bybee said, calling it a “very high barrier.”
‘Ethical crisis’
Mustering congressional approval for term limits is also doubtful with Democrats holding only a slim majority in the Senate and being in the minority in the House of Representatives.
“Republican leaders… see no reason to restrain the court when it’s finally doing what they want it to do,” Bybee said.
However, a code of ethics has a “better than you might think chance of passing,” Thomas said.
Carl Tobias, a University of Richmond law professor, noted that every federal appellate and district court judge is subject to “an enforceable ethical code of conduct.”
The Supreme Court adopted an ethics code in November following reports of luxury vacations received by two conservative justices — both of whom have denied any impropriety — but it was criticized for lacking an enforcement mechanism.
Senator Dick Durbin, a Democrat from Illinois who chairs the Senate Judiciary Committee, thanked Biden for “highlighting the Supreme Court’s ethical crisis.”
“If Chief Justice (John) Roberts won’t use his existing authority to implement reform, Congress should use its established Constitutional authority to require the Court to implement ethics reforms consistent with every other federal court,” Durbin said.
The last major push to reform the Supreme Court, which has been comprised of nine justices since shortly after the Civil War, came during the presidency of Franklin D. Roosevelt, whose New Deal policies were facing opposition.
Roosevelt proposed expanding the court but eventually abandoned the plan.
