Comment: Court-packing is dead but other reforms are possible

By Daniel Epps / Special To The Washington Post

Expectations that Democrats will be able to substantially reform the Supreme Court — perhaps by adding new members — have nosedived recently.

Even before President Biden’s blue-ribbon Supreme Court commission met for the first time, progressives were lamenting that its generally moderate and bipartisan members were unlikely to endorse bold changes to the court’s structure. And even if they did, major reforms appear politically impossible with Democrats’ extraordinarily narrow advantage in the Senate.

So court-packing is almost certainly off the table, as most likely are term limits for justices. But that doesn’t mean Supreme Court reform is dead. Narrower changes could find bipartisan support on Biden’s commission, in Congress and perhaps even among the justices themselves. These reforms certainly wouldn’t solve the biggest problems critics see with today’s court. But they would still be worth implementing to help fix some smaller ones.

What changes might be viable? Perhaps the most likely— as the Vanderbilt law professor Ganesh Sitaraman and I argue in a recent Harvard Law Review Forum essay — is ethics reform. Although federal judges are bound by a code of ethics, no rules govern Supreme Court justices. As court watchdogs have noted, liberal justices have taken trips abroad paid for by outside organizations, and, in one famous episode, Justice Antonin Scalia went on a hunting trip with Vice President Richard B. Cheney in Jan. 2004, three weeks after the court agreed to hear a case involving Cheney’s energy task force. But because there is no disclosure requirement, there may be other possible conflicts of interest that the public never learns about. Rules restricting junkets and establishing standards for when justices should recuse themselves from cases because of personal relationships would be welcome.

Members of Congress are listening to the calls for ethics reform. Recently, Sens. Sheldon Whitehouse, D-R.I., and John Neely Kennedy, R-La., sent a letter to executive branch officials seeking information about the justices’ travel as part of an inquiry into their financial dealings. Other members of Congress have introduced bills that would impose more comprehensive ethics rules on the justices.

A related issue is transparency. The court is a famously secretive institution that has resisted measures to make its work more visible to the public. Most notably, justices have refused to televise arguments. (Justice David Souter once told a House subcommittee that cameras in the courtroom would “roll over my dead body.”) But the justices may not be able to hold out much longer. During the pandemic, circumstances required the court to live-stream the audio of oral arguments. The sky did not fall; instead, the live-streaming enabled greater public engagement with the court’s work. And last month, the Senate Judiciary Committee approved a bipartisan bill that would require television coverage of Supreme Court arguments. The public might pay more attention to a televised court; so this change could spur popular interest in other kinds of reform, too.

Congress could also override unpopular rulings by the court. There are strict limits on its ability to do so, of course: Lawmakers can’t overturn a Supreme Court decision that declares legislation unconstitutional, for example. But they can repudiate the court’s interpretation of federal statutes by rewriting the laws in question. Congress did just that in 2009 when, with bipartisan support, it passed the Lilly Ledbetter Fair Pay Act, which essentially overruled a 2007 court decision that placed strict time limits on when pay-discrimination lawsuits could be filed.

And even with constitutional decisions, Congress isn’t wholly powerless. In the 1990 case Employment Division v. Smith, the court held that the free exercise clause doesn’t require religious exemptions from generally applicable laws. (The question at issue was whether Oregon’s ban on hallucinogenic drugs extended to their use during Native American religious rituals.) Liberals and conservatives both excoriated the ruling. In the aftermath, two bills expanding religious-liberty protections received essentially unanimous support in Congress. The Religious Freedom Restoration Act of 1993 required the federal government to extend religious exemptions more generously than Supreme Court precedent required. After the court declared that act unconstitutional as applied to state governments (it remains the law at the federal level), Congress in 2000 passed the Religious Land Use and Institutionalized Persons Act, which extends religious-freedom protections to prisoners and gives churches exemptions from burdensome zoning laws.

In our polarized age, there are fewer Supreme Court decisions so unpopular that there is bipartisan support for overturning them or modifying their impact. But that doesn’t mean there aren’t any, and members of Congress should try to identify places where there’s willingness to fix problems the court has created. One possibility is qualified immunity, a court-established doctrine dating back decades that limits plaintiffs’ ability to sue police officers who violated their constitutional rights. Critics on both the right and the left have called for an end to the concept, and lawmakers in both parties have been trying to develop legislation that would achieve that goal; and that could obtain bipartisan support.

Another reform option runs through the executive branch but would nonetheless affect Supreme Court cases. In some major constitutional challenges, the Justice Department has declined to defend certain acts of Congress; contrary to the department’s supposed duty to do so. When the department does this, it invites the court to take an aggressive role in striking down legislation. Complaints about this practice are bipartisan: Republicans objected when the Obama Justice Department decided not to argue for the constitutionality of the Defense of Marriage Act, which defined marriage for federal purposes as being between a man and a woman. The shoe was on the other foot when the Trump administration refused to defend the Affordable Care Act before the high court. (DOMA fell, the ACA survived.)

The Biden administration could implement more-robust rules limiting the circumstances in which the solicitor general — the Justice Department official who argues before the Supreme Court — can refuse to defend the constitutionality of federal statutes. Such a reform couldn’t stop the court from aggressively overturning federal laws, but it could raise the stakes a bit for the justices and help set a norm that the acts of Congress are presumed to be constitutional.

Biden’s Supreme Court commission would be wise to explore these and similar “small ball” reforms. And whatever the commission does, Congress should work on some of these changes on its own initiative. (The justices themselves could adopt some reforms, such as creating ethics rules and making audio live-streaming a permanent change.)

For those who think the court is broken and want thorough structural reform, these changes won’t come close to being satisfactory. But the perfect shouldn’t be the enemy of the good, and worthwhile minor tweaks are important even if a major overhaul is necessary.

More fundamentally, even small reforms could have larger benefits. They put the justices on notice that elected officials are paying attention; and that those officials have the power to rein in a court that goes astray. In our democracy, that’s a healthy reminder for unelected Supreme Court justices to hear.

Daniel Epps is the Treiman professor of law at Washington University in St. Louis. He served as a law clerk to Justice Anthony Kennedy and as a special counsel for Sen. Sheldon Whitehouse, D-R.I. He is scheduled to testify at the July 20 public meeting of President Joe Biden’s Supreme Court commission.