Court Reform is the Natural Centerpiece of a Pro-Democracy Agenda
The country is ready and will be receptive
Last Thursday, the Supreme Court spent almost three hours arguing a phantom case.
Faced with the narrow and straightforward question of whether Donald Trump can be prosecuted for attempting to steal an election, the justices held a seminar on how to protect a hypothetical future president from being hypothetically prosecuted for hypothetical crimes he didn’t commit.
The discussion was spearheaded by four of the right-leaning justices, who expressed little interest in addressing the actual question in front of them. And that’s a problem for these self-described judicial conservatives. Because a foundation of conservative jurisprudence is the commitment to resolving only the question before the court and not, as conservatives like to put it, legislating from the bench.
John Roberts famously said at his confirmation hearing that “I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” But what his court did last week was more like ejecting a team’s manager because of something a fan yelled at the umpire.
The hearing gave true conservatives and anyone fearful about the future of democracy plenty to feel queasy about. Not only did the Court sidestep the issue of Trump’s criminal activity, its unnecessarily expansive view of the immunity question—which provided the rationale for taking the case—has delayed Trump’s DC trial for months and could end up pushing it past November.
It’s hard to see how this isn’t the objective, especially given how whenever the Court had a choice to expedite or delay it has chosen to delay. The Court could have taken the case directly from the trial judge but permitted an appellate panel to hear it first. It could have allowed the trial to proceed while hashing out unrelated immunity questions. It could taken the case on an expedited bases rather than wait for the last day of oral argument in the term.
And the Chief could have pressured Clarence Thomas to recuse on the grounds that his wife was in the middle of the insurrection. But Thomas was up there on the bench, asking the first question.
None of these behaviors align with conservative jurisprudence. Neither does the willful disregard for precedent, of which Dobbs is the most blatant but not the only example. Neither does the way these actions collectively undermine the Court’s standing with the public.
Conservatives have always been jealous guardians of the Court’s legitimacy. They understand that legitimacy is the legal tender of the judicial branch. Right now, that currency is worth about as much as Truth Social stock.
The core of the problem is that justices who are commonly referred to as conservatives are not behaving like conservatives. They are cross-pressured between the oath they took to the Constitution and their commitment to a backward-looking political project that would reconfigure life in America.
The political project is winning.
Back in the 80s when Republicans were sweeping presidential elections in landslide numbers, conservative activists shrewdly recognized that control of the White House enabled them to engage in a longterm effort to enshrine right-wing social and economic ideas into law by capturing the judicial branch.
The problem is it took decades to achieve the majorities they needed, and by the time they got there conservatism was receding as a dominant political force. Democrats started winning presidential elections reliably—at least in the popular vote.
Thanks to the legitimacy-busting maneuvers of Mitch McConnell’s senate, they finally got the numbers they needed during the Trump presidency. But the hour is late. They need Trump back in power if the project is going to survive.
Justices who had been vetted for their roles by the Federalist Society recognize that the entire project is at risk just as it is finally coming to fruition. If Joe Biden is re-elected, some of the older Republican appointees who might prefer to retire will have to stick around. And if voters give him legislative majorities in a second term, Biden will move the country permanently away from Reagan-era policies.
The only certain way for the project to survive at this juncture is for a re-elected President Trump to restock the bench with young activists in robes.
How, then, can justices who are committed to seeing the project to fruition square advancing their political objectives with their purported conservative judicial philosophy? They can’t—which is why they sacrifice their public standing whenever they appear to act in the service of reaching a predetermined outcome. Legitimacy is the cost of advancing their goals.
The Court should not be a place where judicial reasoning is conveniently retrofitted to achieve preordained ends. This is the farthest thing from holding to a consistent judicial philosophy, conservative or otherwise. And people get this at a gut level.
It’s why conditions are ripe for judicial reform.
It’s also why Biden should jump on the opportunity to make judicial reform a centerpiece of his pro-democracy argument.
In the context of how the Supreme Court has behaved, and against the backdrop of a precipitous decline in public support for what was once our most hallowed political institution, Biden can make restoring the Court a key action item for a public that is fed up with the theft of government by wealthy interests.
And he can accurately sell it as a conservative reform, because court reform is conservative in the principled understanding of the word.
Conservatives have traditionally revered our institutions. They have defended and protected them. This Supreme Court is calling out for reverence and protection.
The core of the problem is that justices who are commonly referred to as conservatives are not behaving in a manner that’s true to conservative judicial principles.
While there are many ways to get this done, I have in the past advocated for a Brennan Center proposal to implement staggered eighteen-year terms—with the longest-serving justice moved off the active bench every two years—to level out the appointment process by giving every president two appointments per term.
This is fundamentally a conservative reform in that it would establish a gradual process for replenishing the court which would yield measured results while remaining responsive to changes the public mood.
If implemented in the first year of a second Biden term, the longest-serving justice, Clarence Thomas, would rotate off in 2026 to be replaced by a Biden appointee. In 2028, Biden would replace the Chief Justice, who holds the second-longest tenure.
This would rebalance the Court with a 5-4 liberal majority. But it would only stand if Democrats win the 2028 presidential election, after which the new president would get to replace Samuel Alito in 2030 and Sonya Sotomayor in 2032.
The political moment is calling out for a reform agenda, and Biden has the opportunity to meet it with bold strokes.
A message of democratic renewal with Court reform as its centerpiece would give the country a sense of what a second Biden administration could produce.
It would telegraph that he intends to meet rhetoric with action to address problems that large numbers of Americans consider important.
And it would align perfectly with his pledge to secure our rights in an election where the choice is between democracy and autocracy.