The Supreme Court has a legitimacy crisis. Here’s how Congress can fix it.

By Tom Coleman, Special to the Star
Opinion: The Kansas City Star
April 30, 2023

The Supreme Court typically maintains levels of public confidence higher than those for the executive or legislative branches. That public approval of the Court stands near historic lows is significant as Americans have a growing sense that the high court has decided cases based on politics rather than the law. This precipitous fall in approval has lead to the undermining of the Court’s legitimacy.

Constitutional checks and balances empowers congress, in its oversight role, to constrain the judiciary by setting the Supreme Court’s appropriation making it somewhat responsive to the legislative branch and public opinion. Congress can also declare individual pieces of legislation or even entire topics to be beyond the Court’s purview. Congress has increased and decreased the number of justices on the Court, created and changed its jurisdiction.

Today it’s important for Congress to ramp up its judicial oversight responsibility and claw back its powers that have been expropriated by the Court.

Supreme Court justices serve as long as they choose absent illness, death, or impeachment. We are the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its highest court.

The adoption of term limits would address the randomness of life tenure. Staggered eighteen-year non-renewable terms would ensure that all presidents have the opportunity to appoint two judges during a four year term of office. Congress may have to pursue term limits through a constitutional amendment.

Many observers believe the Supreme Court has exerted too much power in our system of constitutional governance by injecting itself into areas that are the province of officials in the legislative branch. The Court’s counter-majoritarian decisions passed down by an unelected judiciary undermine our democracy.

Two proposals that would go along way toward curbing judicial power: Congress could strip jurisdiction from certain kinds of cases and imposing a supermajority voting requirement with at least six justices concurring in a holding.

Most Americans associate the Court with what are called “merit cases that are written with individual Justice’s views and votes recorded. The vast majority of cases are not merit cases but are unsigned orders in response to emergency requests. No reasons are given and individual votes are not publicly revealed. Going forward, the Court should explain the reasons for its emergency decisions and how its members voted.

These changes would limit the Court’s power, shifting control over public policies to the political and democratic process.

Code of conduct necessary

The Supreme Court must take appropriate action to reverse its loss of support by the public by adopting a binding code of conduct. If it fails to adequately do so, Congress should impose one. The status quo is unacceptable.

Supreme Court Justices’ appearances before politically partisan organizations—unfortunately not an unusual occurrence—affects public perceptions of judicial impartiality. The Code should advise the justices to avoid participating with organizations that could cast doubt on the justice’s impartiality. It should include a requirement to disclose gifts given to themselves and family members.

Justices are required to recuse themselves in cases where their impartiality might be questioned. Currently, a recusal decision by a Justice is not subject to review and it’s rare for Justices to offer any explanation. That’s why the code should clearly state the grounds for recusal and include any conflicts of the Justice’s spouse or partner. There should be a presumption that justices know the activities their spouses and partners are involved in.

In recent years there has been a significant increase in the number of highly financed campaigns supporting or opposing nominees to the Supreme Court, just as millions of dollars are now spent to influence confirmation votes of U.S. Senators. Surprisingly, there is no federal statute requiring full and timely disclosure of the amounts and sources of funds spent to influence the confirmation process. Congress should enact one.

These reforms are long overdue. Our democracy requires that Americans have confidence in our Constitutional system. The Supreme Court has an obligation to assure that its conduct is above reproach. If it fails to do so, the Court risks that its decisions may simply be ignored.
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Tom Coleman is a former eight-term U.S. representative from Missouri and a graduate of Washington University School of Law

04.30.23
Tom Coleman: The Supreme Court has a legitimacy crisis. Here’s how Congress can fix it | Opinion, The Kansas City Star

Photo Caption: An ethics code and mandatory disclosures would go a long way toward repairing the court’s tarnished reputation. (Photo source: supremecourt.gov)