Supreme Court Reform Myths vs Facts: Accountability for the Highest Court

The Constitution states that federal judges 'shall hold their Offices during good Behaviour' (Article III, Section 1). This was written when average life expectancy at age 50 was roughly 70-73 years. The founders expected justices to serve 10-15 years, not 30-40. In the first century of the Republic, the average Supreme Court tenure was approximately 15 years. Today it's approaching 28 years — nearly double — because justices are appointed younger and live much longer.

The founders could not have anticipated the modern reality of strategic retirement timing, where justices wait for a president of their preferred party to leave the bench. This practice — which has become standard — converts what was designed as an independent judiciary into a partisan inheritance system. Justice Stephen Breyer was pressured by his own party to retire before the 2022 midterms. Justice Ruth Bader Ginsburg's refusal to retire during the Obama administration resulted in her replacement by a justice with diametrically opposite judicial philosophy.

Notably, the founders did not give lifetime appointments to any other government official. The President serves 4-year terms (limited to two by the 22nd Amendment). Members of Congress serve 2- and 6-year terms. The framers understood that accountability requires periodic renewal of public authority. The judiciary was the one branch where they chose tenure during good behavior — but in a context where 'lifetime' meant something very different than it does today.

Court reform encompasses a wide range of proposals, most of which have nothing to do with changing the number of justices. Term limits (the most popular reform, supported by 66% of Americans including majorities of both parties) would establish 18-year terms with staggered appointments so every president appoints two justices per term. An enforceable ethics code would address the gift and financial disclosure scandals that have plagued the court. Jurisdiction reforms would limit the scope of the court's authority in specific areas. Supermajority requirements would require 6-3 or 7-2 majorities to strike down federal legislation.

Reducing the reform debate to 'court packing' is a framing strategy designed to make all reform seem radical. It associates every proposal with FDR's failed 1937 plan to add up to six justices — a plan that was unpopular and ultimately abandoned. But term limits are not packing. Ethics rules are not packing. Transparency requirements are not packing. Conflating all reforms with the most controversial option is like opposing all healthcare reform because you disagree with one specific proposal.

Even expansion of the court — the actual 'packing' proposal — is not inherently illegitimate. The Constitution does not fix the number of justices. Congress has changed the court's size seven times in history, ranging from 5 to 10 justices. The current number of 9 has been stable since 1869, but it was set by Congress through ordinary legislation, not constitutional mandate. The question isn't whether Congress can change the number — it unambiguously can — but whether doing so would be wise policy.

The confirmation process is now entirely partisan. The last justice confirmed with significant bipartisan support was Elena Kagan in 2010 (63-37). Since then, every nomination has been a party-line vote or close to it. Merrick Garland was denied a hearing entirely for 293 days — the longest vacancy in modern history — through a purely partisan decision by Senate leadership. Amy Coney Barrett was confirmed in 30 days, just 8 days before a presidential election, reversing the precedent set by the Garland blockade.

Justices are selected specifically for their ideological alignment with the nominating president's agenda. The Federalist Society has operated as the de facto judicial selection committee for Republican presidents since the 1990s, explicitly screening candidates for conservative judicial philosophy. Democratic presidents use similar (if less formalized) ideological filters. The pretense that justices are neutral umpires selected solely for legal excellence is contradicted by every aspect of the modern appointment process.

The court's own decisions reflect political patterns. Bush v. Gore (2000) was decided 5-4 along partisan appointment lines. Citizens United (2010) was 5-4. Dobbs v. Jackson (2022) was 6-3, with all six justices in the majority appointed by Republican presidents and all three dissenters appointed by Democratic presidents. Shelby County v. Holder (2013), which gutted the Voting Rights Act, was 5-4 on party lines. The statistical probability of this consistent alignment occurring by legal reasoning alone, absent political influence, is effectively zero.