The Supreme Court is broken — we need Congress to fix it 

The U.S. Supreme Court is the ultimate authority on the Constitution and the nation’s laws. But who judges the justices when they violate the public trust? 

It’s not a hypothetical question. In recent decisions and revelations, the current court has shown it is co-opted by right-wing ideology and corrupted by a certain ex-president trying to escape justice on more than 90 felony charges. 

So, who ultimately judges the justices?  

As usual, the answer is voters. Our Supreme Court must abide by higher standards for objectivity and fairness than any other government institution. Yet public respect for the court has been declining for years.  

Earlier this month, a Politico poll found that a big majority of Americans want Donald Trump to stand trial before the November election. A third said his conviction would make a difference in how they vote, but 75 percent don’t fully trust the Supreme Court to be fair and nonpartisan.   

Unfortunately, voters have no direct authority to restore the court’s integrity. The people’s recourse is to elect a Congress willing to force the court to reform. The next opportunity is Nov. 5. 

So, what are the several ways the Roberts Court has undermined public trust?  

Until recently, it refused to subscribe to the ethics standards set for other members of the federal judiciary. Even after the news media found at least two members engaged in apparent conflicts of interest, the justices hesitated for months before adopting an ethics code. It turned out to be neither binding nor enforceable. 

Second, the court has abandoned the standard of judging without fear or favor. Its conservative majority has bent over backward to protect Trump from accountability for his role in the Jan. 6, 2021, insurrection. The justices even agreed to hear Trump’s specious claim that he enjoys total immunity for his alleged crimes. It delayed oral arguments until next April, making it unlikely Trump’s trial will occur before the election. 

In another case, the justices decided to protect Trump by rewriting the Constitution rather than enforcing it.  

The 14th Amendment disqualifies people from public office if they swear to support the Constitution, then aid an insurrection. It says oath-swearing insurrectionists can escape disqualification only with a two-thirds vote of the House and Senate. The court’s conservatives gave Congress a new role, saying no insurrectionist can be sanctioned unless Congress says so, apparently on a case-by-case basis. So, a highly partisan body, rather than the Constitution, will make these decisions. 

Third, the justices disregard “settled laws” decided by and repeatedly affirmed by previous courts. The most egregious example was its reversal of Roe v. Wade. Now, state politicians decide whether women have the right to make their own reproductive decisions. The court also gutted the landmark Voting Rights Act of 1965, reasoning, perhaps naively, that racism is no longer a problem in the South. 

Fourth, the court opened the floodgates for corporations to make unlimited anonymous monetary contributions to political campaigns. The majority reasoned unrealistically that campaign contributions don’t influence how members of Congress vote. It also stretched credulity by ruling that money is speech and corporations are people. As a result, corporations and wealthy Americans gained even more power to shape the nation’s laws to their benefit. 

So, Supreme Court reform should be a top objective for voters this year. That requires a Congress committed to the goal. In a previous article, I pointed out that Congress has the necessary powers. Democrats (ideally joined by moderate Republicans and independents) should promise to use them if voters give them a trifecta: control of the White House, House, and Senate.  

Congress could: 

• Allow President Biden to create better ideological balance on the court by adding four new justices during his second term; 
  
• Establish by rule that the Senate’s duty in confirming Supreme Court nominees includes maintaining ideological balance on the court. The rule also should require that the Senate act on presidential appointments to the court regardless of their proximity to elections; 
  
• Require the Judicial Conference of the United States to create and enforce a strict code of ethics for justices, including mandatory disclosure of potential and apparent conflicts of interest. The code should require justices to recuse themselves from cases where real or apparent conflicts exist; 
  
• Establish term limits of 18 years for justices and require them to retire at or before age 70. This would bring the Supreme Court in line with the District of Columbia and 32 states that have set mandatory retirement ages for appellate court judges; 

• Send President Biden legislation to restore Roe v. Wade and a strong Voting Rights Act as the laws of the land; 
  
• Pass legislation to strengthen the Federal Elections Commission, end gerrymandering and voter suppression, and eliminate unlimited and anonymous campaign contributions.  
  
• By statute or proposed constitutional amendment, clarify that the president of the United States a) does not have absolute immunity for violating laws, b) can be prosecuted while in office, and c) can be permanently disqualified from public office under Section 3 of the 14th Amendment without an act of Congress. 
  
• Under Article III of the Constitution, strip federal appellate courts including the Supreme Court of jurisdiction over certain classes of cases, including those involving women’s reproductive rights and the obligation of governments to protect “public trust assets” for current and future generations. 
  
• Discourage growing abuses of the First Amendment by racists, militants, domestic terrorists, accelerationists and other extremists by compelling the court to define unprotected speech by contemporary standards. For example, pass a law that clarifies when predictions of civil violence and “blood baths” cross the line into true threats; when hate speech becomes discriminatory harassment; and when threats of violence or death constitute unprotected “true threats.” 

These and other commitments for reforming the Supreme Court should be part of the next Congress’s Contract with America. 

William S. Becker is a former U.S. Department of Energy central regional director who administered energy efficiency and renewable energy technologies programs. He is executive director of the Presidential Climate Action Project, a nonpartisan initiative founded in 2007 that works with national thought leaders to develop recommendations for presidential leadership on climate action. The project is not affiliated with the White House.