The majority of Americans want Supreme Court reform, and here’s how it might work

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Two-thirds of Americans want judicial reform in the wake of the US Supreme Court’s landmark Dobbs v. Jackson decision, which revoked the half-century of abortion rights that had been guaranteed under the 1973 Roe v. Wade ruling.

“We’re in a bit of uncharted territory here,” says Carolyn Shapiro, professor of law at ITT Chicago-Kent College of Law. “For the first time in a very long time, perhaps ever, there is a growing public appetite for changes on the court, such as adding seats and/or imposing term limits.”

The US Supreme Court’s general approval hit a new low last month, with disapproval by the Supreme Court hitting its highest level since Gallup began tracking it in 2000.

The survey found that 53% of people disapprove of the job the Supreme Court does. 40% of respondents described the court as ideologically “correct”, while 37% said the court was “very conservative”.

The results of the Gallup poll, conducted Sept. 1-17, came about a year after 58% of Americans declared they approved of the Supreme Court, and two months after the Supreme Court’s decision to overturn Roe.

Anti-climb fencing blocks stairs leading to the Supreme Court, May 10, 2022, in Washington, after a leaked draft of the Supreme Court opinion indicated the court was ready to overturn the landmark 1973 Roe v. Wade decision that legalized abortion nationwide.

In addition to the abortion decision, many Americans feel that the current court, as many as six Republican appointees and three Democratic appointees, does not They represent the American people.

“This is the case, even though Republican presidential candidates have won the popular vote exactly once since 1988,” says Shapiro. Donald Trump has been president for four years and has not won a majority and has three nominations. president [Barack] Obama was president for eight years and received two popular votes and received two votes [Supreme Court] seats. This is an argument in favor of term limitation, because the idea of ​​term limits is that … every president, in every term, will have the opportunity to appoint two justices. “

A poll conducted by Politico in June showed that 62% of respondents support limiting judges’ terms of office, compared to 23% in opposition. 45% support increasing the number of judges on the court, while 38% oppose the move. The Constitution gives Congress the power to expand the Supreme Court, which lawmakers have done seven times in the past.

“Scaling up a court to change its policies isn’t unprecedented, but it hasn’t happened in over 150 years,” says Lawrence Baum, emeritus professor of political science at The Ohio State University. “And there is something to be said for leaving things as they are. But there is also something to be said for giving other branches the opportunity to address what they see as an imbalance.”

US Chief Justice John Roberts and Associate Justice Kitangi Brown Jackson are flanked by fellow justices as they stand before Justice Jackson's inauguration ceremony at the Supreme Court in Washington, September 30, 2022.

US Chief Justice John Roberts and Associate Justice Kitangi Brown Jackson are flanked by fellow justices as they stand before Justice Jackson’s inauguration ceremony at the Supreme Court in Washington, September 30, 2022.

Fifty-three percent of people polled support balancing the court with equal numbers of Democrats, Republicans, and independents, while 30% oppose it.

“What we have is a true minority court in the sense that it doesn’t represent the vast majority of the way Americans voted,” Shapiro says. It’s constitutional. I do not want to suggest that it is illegitimate in this sense, but I think it is very difficult for the Court to detach itself from the democratic process.”

Both Shapiro and Baum support the idea of ​​term limits for Supreme Court justices.

“It removes the element of randomness that causes some presidents who are luckier than others to have more opportunities to choose members of the court,” says Baum. “It also reduces, to a certain extent, the chance that someone will be on the field beyond the time they could be effective.”

Term restrictions may end the political skill in the US Senate that prevented Obama from appointing a justice after the death of Justice Antonin Scalia in February 2016, while allowing Trump to successfully nominate Justice Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg in September 2020.

“We’re not going to have strategic retirements where a candidate retires in order to convince a certain boss to give his boss that nomination,” Shapiro says. “The eighteen-year limit is the proposal I am talking about. That would restore the judges’ terms of office to what they were actually in the first hundred years.”

Associate justices walk down the steps of the Supreme Court as they await the arrival of the casket bearing Chief Justice William Rehnquist, September 7, 2005 in Washington.

Associate justices walk down the steps of the Supreme Court as they await the arrival of the casket bearing Chief Justice William Rehnquist, September 7, 2005 in Washington.

Last year, President Joe Biden appointed a panel of experts to explore possible Supreme Court reform. The committee recommended a new code of ethics and greater court transparency but stopped short of endorsing term limits or expanding the court.

Even without Supreme Court reform, Baum says there are ways to reduce the impact of unpopular Supreme Court rulings.

Supreme Court decisions often leave plenty of room for people to respond in different ways. Think about Dobbs’ decision to have an abortion. As it is now, it gives states very wide freedoms in what abortion policies to adopt,” says Baum.

And so, states that use Dobbs as a basis for banning abortion are essentially complying. States that decide they will protect abortion even if the Supreme Court doesn’t, they also comply. And so states can often do a lot of what they want to do within the confines of a decision Supreme court “.

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