The renegade Supreme Court exhibits an over-exercise of power, open contempt for the laws Congress passes, and a heavy partisan tilt. It doesn't have to be this way
I agree. So what if each change of party would further enlarge the court! Who cares. Even if the court grows so large that they need to hold session in Yankee Stadium to be able to seat all the justices. They're a bunch of bright girls and boys and will figure out how to make it work.
I actually think the best approach is rotating terms, including currently seated justices. Start with the most senior justice, and then work down. 18 year terms, with a justice rotating off every 2 years. That justice can have the option to join any of the 13 circuit courts, at no loss in salary. If a justice does not complete the term (due to death, retirement, impeachment, etc) then the President can nominate a replacement, subject to Senate confirmation, to fill out the term, and then go off the court. It might be Constitutional, but the final decision will lie with the current court-- TALK ABOUT CONFLICT OF INTEREST!
So the easiest approach is to expand the court with 4 justices. The legality of that is unquestioned.
Yeah, but the constitutionality of rotating terms is not certain, while setting the number of Justices is an unquestioned power of Congress. And the most frustrating thing is that if rotating terms were implemented, guess who would have a final say as to its Constitutionality? You got it-- the current SCOTUS would get to decide its own fate. Talk about a conflict of interest!
Similarly, Orenstein's proposal to remove certain laws from SCOTUS jurisdiction is probably Constitutional (since the Constitution gives a few specific area for SCOTUS jurisdiction and says the rest are determined by Congress), but again, the current SCOTUS would get to decide, and they're hardly a neutral arbiter.
Actually, the easiest way to reform the court quickly would be to reduce the number of judges (which would require an act of Congress, but not an amendment).
"If there has to be a court packing war, then bring it on."
There is nothing wrong with the current number of justices in SCOTUS. It's just that whiny Democrats are always looking for ways to change institutions they don't control.
"The alternative is intolerable."
The "alternative" is actually the de facto standard. Go to the ballot box and vote your way back to regain the White House and the Senate by the 2028 election cycle and beyond. If Thomas and Alito want to pull an RBG in this environment by not stepping down before Trump leaves office or Repubs lose the Senate, well that's on them.
"unleashing Trump with the ahistorical and bizarre immunity decision that would have left the Framers bewildered that the third branch of government would undermine the first branch of government to create a dictator from the second branch of government."
Without doubt the single most nefarious Court decision in history.
This Extreme Court knowingly unleashed the fascist felon to do his worst in destroying our democracy.
If only we had the congressional numbers to impeach at least one of them and reveal their corruption and self-subjugation to the billionaire oligarchs now running our country.
As bad as the Roberts Star Chamber's decision was to give sweeping immunity to the executive, I think it's Citizens United that may ultimately sink us. It has allowed oligarchs and plutocrats to control information, buy elections, and control our political narrative, forcing politicians of both parties to dance to their tune to one degree or another. The rest is mostly symptom of the rot that comes from that decision.
"unleashing Trump with the ahistorical and bizarre immunity decision that would have left the Framers bewildered that the third branch of government would undermine the first branch of government to create a dictator from the second branch of government."
On the plus side, that decision applies to ALL Presidents going forward, even Democratic ones.
The only solution to the crime wave started by 47 is to remove the Toadies in Congress. They are co-conspirators in the Fascist takeover. Until that happens there can be no relief from the terrorism.
I taught American Government and for a few. years also Civil Rights as well. I am not shocked by the behavior of Scotus now - it was coming - but disgusted that members of the USSC are destroying the court. The majority do not care - they have power now. - they care not at all about the future.
I totally agree that term limits are needed for SCOTUS. It makes sense to have at least 13 justices when there are 13 circuits. Thanks for the clarity on this topic.
I agree with everything you say. Given the inventive powers of this court, it is highly likely that the super court of appeals you outline would be declared unconstitutional by them. Instead, leaders and skilled practitioners like you must take the inevitable leadership task of calling for the resignations of the grifters (Roberts, Alito and Thomas) insurrectionists (Thomas and Alito) and perjurer Kavanaugh. A peaceful ,loud and unrelenting campaign will have more effect than the proposed reforms that will probably be struck down by the court being reformed.
But Ornstein noted that Article 2, Section 2, paragraph ii, gives Congress the absolute right to restrict what the court can rule on. If there is an overwhelming vote in the Congress in 2029 for a new law signed by a president from our side, they can eviscerate the Court's ability to declare that law or any other unconstitutional.
That very decision, Marbury v. Madison in 1803, in which the court gave itself the right to declare the constitutionality of any law, was made up out of whole cloth. Given that the Republican side is destroying the norms of our entire history, there is no reason that the Democrats shouldn't go back to 1803 and point out that that decision was made up out of whole cloth, has no support in the entire Constitution, anywhere, and that Congress is declaring it invalid and that the court has no authority to challenge it under the written words of the Constitution.
Congress can also pass a mandatory ethics code for all courts, with enough teeth and a strong enough bite that any breach by any justice or judge will require immediate recusal from all cases until hearings are held and completed to determine whether or not the breach is sufficient to move for impeachment. If not, apply some simple penalty, like that justice MUST recuse him-/herself from all cases touching on a similar issue (civil rights, or voting rights, or corporate practices, or women's health care, or whatever issue the original breach happened under). For a second breach of the ethics law (not a Code of Conduct or a Code of Ethics, but a LAW), the punishment is a huge fine and removal from office through impeachment and conviction.
A big enough majority on both Houses will also allow for the impeachment and conviction of several current members of the court, for corruption, ethical violations, and lying to Congress under oath during their confirmation hearings.
Thank you Norman Ornstein for this piece. I have been arguing for years that Congress should use its authority under the Constitution to restrict the SCOTUS when its acting as an appellette court (most of the time). It is crystal clear the founding fathers did not envision a SCOTUS with this kind of unchecked power.
Republicans in Congress have taught us that ultimately there's no document, not even our cherished Constitution that can protect us from a totally corrupt and immoral political system. The American people are the only ones that can guide us towards a democracy more consistent with what our founders envsioned. If Democrats can regain power they must show the courage to make radical changes to our political system. First stop is elections. Remove the stink of corporate money. No more partisan gerrymandering.
I don't mean to be overly snarky but, what color is the sky in your and Norm Ornstein's world? As much as I agree with SC reform and Congress taking power back, I'm really afraid the Constitution all along was a paper tiger.
Reforms are not coming from Republicans, they have everything they ever wanted - unaccountable power. They stole the court because our cherished Constitution gave the the room. Even if there is a fair election, Democrats won't be elected in numbers to override a veto or for that matter get past the filibuster. Now we have the SC sanctioned gerrymander war which mostly benefits Republicans.
Our system of government was held together by norms and enough people doing the right thing. That no longer holds. I'm not sure we will ever get back there. One side exploited all the loop holes and exceptions, no longer respects the other side, abandoned decency and democracy. Every other country that tried to duplicate our system ended up in a dictatorship.
Yes, but look at Hungary. Citizens have a lot of power, and Americans are very, very discontented right now. What's missing is our 2026 version of Martin Luther King, someone to inspire and lead. I think many people feel fury at the corruption, the abuse of power and the loss of our civil rights. Creativity and organizing are critical to righting the boat. Do something original to bring people together -- in human form, not online. I always thought community dances with a theme, maybe even some fun contests, would be a good place to start. Or maybe a gigantic pot luck supper, Amish barn style.
This Supreme Court may well be described in the history books as the worst Court America has ever had, because of its poor reasoning and very un-American holdings and the values these reflect. Seven of the nine Justices have some degree of Roman Catholicism in their background (with (five calling themselves practicing Catholics). As a once-faithful adherent to the Church's teachings, I find it hard to comprehend how they square the moral teachings found in the Gospels with how they rule in matters affecting people's lives.
I wasn't impressed much by the new Pope until he said that It was time to realize that sex shouldn't be the moral issue that the Church focuses on, it should focus on peace and justice issues. (Oh, and until he opposed our president.) I'm not quoting him exactly but that was the gist, if I understood him correctly. The Church seems to put obedience and sexual denial at the top of its list of virtues, which doesn't seem very Christ-like.
Court reforms, yes. BUT first all Americans of every color, religion and gender need to work together to create a BLACK TSUNAMI of voting this Fall, to take back our power from these racist, misogynistic smug men! Then, we hold onto it for dear life, because failure means the loss of that dear life for generations to come.
As a simple American citizen, not claiming any qualifications as a legal scholar, I offer for consideration in 1869 with a USA population of 31,443,321 people the court was expanded to 9 seats, one justice for each of the 9 appeals court sections. Today there are 13 appeals court sections but only 9 justices!
The current Population of the USA is 344,023,146 people the court still has only 9 seats! The current population number is more than TEN Times the population of 1869 when the court was expanded!
The ‘what if’ hand wringing over REBALANCING the court is utterly unfounded! Simple math tells us that our democracy cries out for more people on the court in order to properly SERVE the citizens of OUR COUNTRY and to restore the rule of law!
My belief is that the Court should be expanded to 27 members, and on each case that comes before it a random group of seven justices hear the case and decide. If there is even one dissenting vote from among those seven, then the entire 27-member Court hears the case -- and it must reach a 2/3 majority in order to have its opinion be finalized.
How to get there? The president nominates three members a year for (non-renewable) 14-year terms (plus s/he can nominate additional members whenever a vacancy occurs through death or retirement), until the number reaches 27. Hence 12 per presidential term until we have 27, so six years before a full complement is achieved.
And include in that new law that the Senate MUST begin hearings on each nominee within 60 calendar days of the nomination being signed by the president (or, maybe better, sent to the Senate for consideration); that the full Senate MUST vote the nominee up or down within 60 days of the first day of hearings, and that if the Senate has not met its obligation to do so, the nominee will take the seat on the Court. Kind of the opposite of a pocket veto.
The Senate is in charge of its own calendar and procedures, so there can't be requirements about committee hearings on HOW they proceed ... but there can be deadlines concerning WHEN the body must act by taking a vote, with the specific provision in the law that if they don't meet the statutory deadline, their opportunity has passed and they've tacitly ceded the decision about the nominee to the president.
Totally agree! A ‘bought’ election reeks of Dictatorship and is unAmerican. I can only pray that people come out in droves to vote in the November elections!
I completely agree: all options should be on the table. We need to reform the Court. One option not mentioned, Mr. Ornstein, is a Congress faithful to its oath of office and the attendant responsibilities. There are enough crimes committed by Alito and Thomas to have had them removed from the Court. The corruption should have been investigated, not just by the fourth estate (itself now often an extension of a corrupt executive through its corporate agents), but by Congress. Not being a Constitutional scholar, I don't know whether this move is permitted, but I think it's high time that the Supine Court were held to the same ethics standards as the rest of the judiciary.
I’ve long advocated expanding the Court to match the number of circuits, and I’m glad to see Ornstein arguing the same. If we create a law that permanently ties the size of the Court to the number of circuits, that could prevent constant expand-the-Court battles. If you want to expand the Court beyond 13, you’d have to create a new circuit, which is more difficult.
I still find the idea of 13 Justices with term limits very appealing. I favor 13 year terms with the next justice in that slot being the Chief Judge in that respective Circuit stepping into that slot. I favor eliminating presidential appointments wherever possible. This Court will never accept a legislative solution - if they would gut the VRA, they will surely gut Court reform. It is going to need to be through a Constitutional Amendment. To do this we need to light a fire under the high-level Democrats to come up with a true 50 state plan which includes taking majorities in as many state legislatures as we can.
Changing the number of judges on the court would not require an amendment (which is impossible to accomplish for all practical purposes) however, term limits would.
If there has to be a court packing war, then bring it on. The alternative is intolerable.
I agree. So what if each change of party would further enlarge the court! Who cares. Even if the court grows so large that they need to hold session in Yankee Stadium to be able to seat all the justices. They're a bunch of bright girls and boys and will figure out how to make it work.
I actually think the best approach is rotating terms, including currently seated justices. Start with the most senior justice, and then work down. 18 year terms, with a justice rotating off every 2 years. That justice can have the option to join any of the 13 circuit courts, at no loss in salary. If a justice does not complete the term (due to death, retirement, impeachment, etc) then the President can nominate a replacement, subject to Senate confirmation, to fill out the term, and then go off the court. It might be Constitutional, but the final decision will lie with the current court-- TALK ABOUT CONFLICT OF INTEREST!
So the easiest approach is to expand the court with 4 justices. The legality of that is unquestioned.
Start the cheer, like in a football game;
PACK THAT COURT!
PACK THAT COURT!
PACK THAT COURT!
PACK THAT COURT!
PACK THAT COURT!
PACK THAT COURT!
rotating sup crt terms could be part of the rewrite
Yeah, but the constitutionality of rotating terms is not certain, while setting the number of Justices is an unquestioned power of Congress. And the most frustrating thing is that if rotating terms were implemented, guess who would have a final say as to its Constitutionality? You got it-- the current SCOTUS would get to decide its own fate. Talk about a conflict of interest!
Similarly, Orenstein's proposal to remove certain laws from SCOTUS jurisdiction is probably Constitutional (since the Constitution gives a few specific area for SCOTUS jurisdiction and says the rest are determined by Congress), but again, the current SCOTUS would get to decide, and they're hardly a neutral arbiter.
part of the rewrite Ivan...
Actually, the easiest way to reform the court quickly would be to reduce the number of judges (which would require an act of Congress, but not an amendment).
"If there has to be a court packing war, then bring it on."
There is nothing wrong with the current number of justices in SCOTUS. It's just that whiny Democrats are always looking for ways to change institutions they don't control.
"The alternative is intolerable."
The "alternative" is actually the de facto standard. Go to the ballot box and vote your way back to regain the White House and the Senate by the 2028 election cycle and beyond. If Thomas and Alito want to pull an RBG in this environment by not stepping down before Trump leaves office or Repubs lose the Senate, well that's on them.
"unleashing Trump with the ahistorical and bizarre immunity decision that would have left the Framers bewildered that the third branch of government would undermine the first branch of government to create a dictator from the second branch of government."
Without doubt the single most nefarious Court decision in history.
This Extreme Court knowingly unleashed the fascist felon to do his worst in destroying our democracy.
If only we had the congressional numbers to impeach at least one of them and reveal their corruption and self-subjugation to the billionaire oligarchs now running our country.
As bad as the Roberts Star Chamber's decision was to give sweeping immunity to the executive, I think it's Citizens United that may ultimately sink us. It has allowed oligarchs and plutocrats to control information, buy elections, and control our political narrative, forcing politicians of both parties to dance to their tune to one degree or another. The rest is mostly symptom of the rot that comes from that decision.
"unleashing Trump with the ahistorical and bizarre immunity decision that would have left the Framers bewildered that the third branch of government would undermine the first branch of government to create a dictator from the second branch of government."
On the plus side, that decision applies to ALL Presidents going forward, even Democratic ones.
The only solution to the crime wave started by 47 is to remove the Toadies in Congress. They are co-conspirators in the Fascist takeover. Until that happens there can be no relief from the terrorism.
I taught American Government and for a few. years also Civil Rights as well. I am not shocked by the behavior of Scotus now - it was coming - but disgusted that members of the USSC are destroying the court. The majority do not care - they have power now. - they care not at all about the future.
I totally agree that term limits are needed for SCOTUS. It makes sense to have at least 13 justices when there are 13 circuits. Thanks for the clarity on this topic.
term limits are needed for everyone who is elected in the New America constitution
I agree with everything you say. Given the inventive powers of this court, it is highly likely that the super court of appeals you outline would be declared unconstitutional by them. Instead, leaders and skilled practitioners like you must take the inevitable leadership task of calling for the resignations of the grifters (Roberts, Alito and Thomas) insurrectionists (Thomas and Alito) and perjurer Kavanaugh. A peaceful ,loud and unrelenting campaign will have more effect than the proposed reforms that will probably be struck down by the court being reformed.
But Ornstein noted that Article 2, Section 2, paragraph ii, gives Congress the absolute right to restrict what the court can rule on. If there is an overwhelming vote in the Congress in 2029 for a new law signed by a president from our side, they can eviscerate the Court's ability to declare that law or any other unconstitutional.
That very decision, Marbury v. Madison in 1803, in which the court gave itself the right to declare the constitutionality of any law, was made up out of whole cloth. Given that the Republican side is destroying the norms of our entire history, there is no reason that the Democrats shouldn't go back to 1803 and point out that that decision was made up out of whole cloth, has no support in the entire Constitution, anywhere, and that Congress is declaring it invalid and that the court has no authority to challenge it under the written words of the Constitution.
Congress can also pass a mandatory ethics code for all courts, with enough teeth and a strong enough bite that any breach by any justice or judge will require immediate recusal from all cases until hearings are held and completed to determine whether or not the breach is sufficient to move for impeachment. If not, apply some simple penalty, like that justice MUST recuse him-/herself from all cases touching on a similar issue (civil rights, or voting rights, or corporate practices, or women's health care, or whatever issue the original breach happened under). For a second breach of the ethics law (not a Code of Conduct or a Code of Ethics, but a LAW), the punishment is a huge fine and removal from office through impeachment and conviction.
A big enough majority on both Houses will also allow for the impeachment and conviction of several current members of the court, for corruption, ethical violations, and lying to Congress under oath during their confirmation hearings.
amy uncumley also lied in her confirmation hearing
Thank you Norman Ornstein for this piece. I have been arguing for years that Congress should use its authority under the Constitution to restrict the SCOTUS when its acting as an appellette court (most of the time). It is crystal clear the founding fathers did not envision a SCOTUS with this kind of unchecked power.
Republicans in Congress have taught us that ultimately there's no document, not even our cherished Constitution that can protect us from a totally corrupt and immoral political system. The American people are the only ones that can guide us towards a democracy more consistent with what our founders envsioned. If Democrats can regain power they must show the courage to make radical changes to our political system. First stop is elections. Remove the stink of corporate money. No more partisan gerrymandering.
I don't mean to be overly snarky but, what color is the sky in your and Norm Ornstein's world? As much as I agree with SC reform and Congress taking power back, I'm really afraid the Constitution all along was a paper tiger.
Reforms are not coming from Republicans, they have everything they ever wanted - unaccountable power. They stole the court because our cherished Constitution gave the the room. Even if there is a fair election, Democrats won't be elected in numbers to override a veto or for that matter get past the filibuster. Now we have the SC sanctioned gerrymander war which mostly benefits Republicans.
Our system of government was held together by norms and enough people doing the right thing. That no longer holds. I'm not sure we will ever get back there. One side exploited all the loop holes and exceptions, no longer respects the other side, abandoned decency and democracy. Every other country that tried to duplicate our system ended up in a dictatorship.
Yes, but look at Hungary. Citizens have a lot of power, and Americans are very, very discontented right now. What's missing is our 2026 version of Martin Luther King, someone to inspire and lead. I think many people feel fury at the corruption, the abuse of power and the loss of our civil rights. Creativity and organizing are critical to righting the boat. Do something original to bring people together -- in human form, not online. I always thought community dances with a theme, maybe even some fun contests, would be a good place to start. Or maybe a gigantic pot luck supper, Amish barn style.
This Supreme Court may well be described in the history books as the worst Court America has ever had, because of its poor reasoning and very un-American holdings and the values these reflect. Seven of the nine Justices have some degree of Roman Catholicism in their background (with (five calling themselves practicing Catholics). As a once-faithful adherent to the Church's teachings, I find it hard to comprehend how they square the moral teachings found in the Gospels with how they rule in matters affecting people's lives.
Catholics LOVE rules, I know I used to be one, I notice a lot of hard nosers are Catholic...bill oreilly sean hannity laura ingram and more
I wasn't impressed much by the new Pope until he said that It was time to realize that sex shouldn't be the moral issue that the Church focuses on, it should focus on peace and justice issues. (Oh, and until he opposed our president.) I'm not quoting him exactly but that was the gist, if I understood him correctly. The Church seems to put obedience and sexual denial at the top of its list of virtues, which doesn't seem very Christ-like.
Court reforms, yes. BUT first all Americans of every color, religion and gender need to work together to create a BLACK TSUNAMI of voting this Fall, to take back our power from these racist, misogynistic smug men! Then, we hold onto it for dear life, because failure means the loss of that dear life for generations to come.
As a simple American citizen, not claiming any qualifications as a legal scholar, I offer for consideration in 1869 with a USA population of 31,443,321 people the court was expanded to 9 seats, one justice for each of the 9 appeals court sections. Today there are 13 appeals court sections but only 9 justices!
The current Population of the USA is 344,023,146 people the court still has only 9 seats! The current population number is more than TEN Times the population of 1869 when the court was expanded!
The ‘what if’ hand wringing over REBALANCING the court is utterly unfounded! Simple math tells us that our democracy cries out for more people on the court in order to properly SERVE the citizens of OUR COUNTRY and to restore the rule of law!
There is no such thing as a simple American citizen Louis. You are part of a great experiment in self gov.
I completely agree with you, BosPhotoGuy.
My belief is that the Court should be expanded to 27 members, and on each case that comes before it a random group of seven justices hear the case and decide. If there is even one dissenting vote from among those seven, then the entire 27-member Court hears the case -- and it must reach a 2/3 majority in order to have its opinion be finalized.
How to get there? The president nominates three members a year for (non-renewable) 14-year terms (plus s/he can nominate additional members whenever a vacancy occurs through death or retirement), until the number reaches 27. Hence 12 per presidential term until we have 27, so six years before a full complement is achieved.
And include in that new law that the Senate MUST begin hearings on each nominee within 60 calendar days of the nomination being signed by the president (or, maybe better, sent to the Senate for consideration); that the full Senate MUST vote the nominee up or down within 60 days of the first day of hearings, and that if the Senate has not met its obligation to do so, the nominee will take the seat on the Court. Kind of the opposite of a pocket veto.
The Senate is in charge of its own calendar and procedures, so there can't be requirements about committee hearings on HOW they proceed ... but there can be deadlines concerning WHEN the body must act by taking a vote, with the specific provision in the law that if they don't meet the statutory deadline, their opportunity has passed and they've tacitly ceded the decision about the nominee to the president.
this could also be a good idea
Big money needs to be removed from American politics immediately.
Nothing else will recover our democracy and if big money remains in politics.
Nothing
Totally agree! A ‘bought’ election reeks of Dictatorship and is unAmerican. I can only pray that people come out in droves to vote in the November elections!
I completely agree: all options should be on the table. We need to reform the Court. One option not mentioned, Mr. Ornstein, is a Congress faithful to its oath of office and the attendant responsibilities. There are enough crimes committed by Alito and Thomas to have had them removed from the Court. The corruption should have been investigated, not just by the fourth estate (itself now often an extension of a corrupt executive through its corporate agents), but by Congress. Not being a Constitutional scholar, I don't know whether this move is permitted, but I think it's high time that the Supine Court were held to the same ethics standards as the rest of the judiciary.
I’ve long advocated expanding the Court to match the number of circuits, and I’m glad to see Ornstein arguing the same. If we create a law that permanently ties the size of the Court to the number of circuits, that could prevent constant expand-the-Court battles. If you want to expand the Court beyond 13, you’d have to create a new circuit, which is more difficult.
I still find the idea of 13 Justices with term limits very appealing. I favor 13 year terms with the next justice in that slot being the Chief Judge in that respective Circuit stepping into that slot. I favor eliminating presidential appointments wherever possible. This Court will never accept a legislative solution - if they would gut the VRA, they will surely gut Court reform. It is going to need to be through a Constitutional Amendment. To do this we need to light a fire under the high-level Democrats to come up with a true 50 state plan which includes taking majorities in as many state legislatures as we can.
I like your concept, but I am doubtful we could get thirty-seven States to agree to the amendment.
Changing the number of judges on the court would not require an amendment (which is impossible to accomplish for all practical purposes) however, term limits would.
Still waiting for Thomas. and Alito recusal motions......
And waiting, and waiting, and...!
Don't hold your breath!
The Supreme Court is now The Extreme Court.