Structural Reforms to Restore the U.S. Supreme Court’s Legitimacy
Illustration by Renee Xia
The Supreme Court of the United States (SCOTUS) is at a crossroads. In recent years, the nation’s highest court has gone from a non-partisan arbiter to a politicized arm of the government, leading many to cast doubt on the integrity of their decisions. Given that many scholars are concerned about the decline of public trust and procedural fairness, as well as the rise of partisanship, reform may seem overly idealistic in the current divided political climate, where bipartisan agreement is rare. However, as demands for transparency and accountability grow, these reforms are not just possible, but necessary to protect the legitimacy of the American judicial system.
The Decline in Public Trust of the Court
The Supreme Court was established as the highest Court in the judicial system, with the purpose of interpreting the U.S. Constitution, setting legal precedents, and upholding American democracy as a whole. However, in the 21st century, public confidence that the Supreme Court is following through on this original purpose has waned significantly. In 2022, Gallup found that the number of Americans who had a ‘great deal of trust’ in the Supreme Court had dropped to 25 per cent, a significant decline from 1999, where Gallup found that 80 per cent of Americans trusted the Court. In addition, merely 20 percent of Americans believe that SCOTUS is a neutral arbiter of law, rather than influenced by current politics. This erosion of trust is not confined to the public, it is even acknowledged by Supreme Court Justice Clarence Thomas in 2022, stating: “We are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society without a stable legal system... Now that trust or that belief is gone forever”. Reflecting that when the Court’s impartiality is called into question, citizens begin to reject legal outcomes; this threatens the stability of American institutions as a whole.
Public Scrutiny in Bush v. Gore
This decline of public trust is far from a recent phenomenon, but a decay in trust spanning a quarter century. Both parties have accused the other of exploiting the Court as a political instrument, deepening the belief that the Court serves a political purpose. This perception can be traced to three patterns that have politicized the Court: partisan rulings, politicization of appointments, and procedural double-standards. Regarding partisan rulings, such as the 2000 Presidential Election, the result between Republican George W. Bush and Vice President Al Gore was one of the closest in American history, coming down to Florida’s 25 electoral votes. When the votes were totalled, Bush had won by a margin of merely 537 votes out of nearly six million cast, triggering an automatic recount under state law. In a highly scrutinized decision, the U.S. Supreme Court intervened and overturned the Florida Supreme Court’s mandate for a recount, voting 5-4, as the justices were divided along ideological lines. The Supreme Court stated that counties used different voting methods, ruling that this practice had violated the Equal Protection Clause in the Constitution. By neglecting legal precedent to intervene in a state-level election, the Supreme Court ignited the sense of skepticism that continues to be directed toward the Court today. Many Americans saw this as a partisan ruling, rather than impartial judgement, considering that the Court explicitly stated the Equal Protection Clause can only be applied in Bush’s circumstance, ensuring the decision did not set a legal precedent.
Appointments as a Political Instrument
The fallout from Bush v. Gore contributed to a new political environment surrounding judicial appointments, where liberals and conservatives alike contributed to the ‘gamesmanship’ of the Supreme Court. For instance in 2006, Democrats broke with convention by opposing the confirmation of conservative Justice Samuel Alito, with only four Democrats supporting his nomination, resulting in a 58-42 confirmation. Despite Alito’s 15 years of judicial experience and hundreds of appellate opinions. This low level of bipartisan support signalled an end to a historic norm, when nominees could expect bipartisan support if they were deemed qualified. In comparison to Ruth Bader Ginsburg, who was selected merely 13 years before on a 96-3 margin, with nearly every Republican senator backing her based on her strong judicial experience and widely respected reputation. Even Barack Obama, who as a senator opposed Alito, later admitted that his opposition was a decision he “regrets”, as it has led to the confirmation process to be ‘one more extension of politics’. Obama’s dismay came too late - as the bipartisan nature that once defined confirmations had all but disappeared.
In 2016, when Republican Senate Majority Leader Mitch McConnell refused to hold confirmation hearings for President Obama’s nominee Merrick Garland following the death of Justice Scalia eight months before the presidential election, even though this occurred eight months before the presidential election. Senator McConnell argued there should not be a SCOTUS appointment made in an election year and that it should be left to the American people to decide by electing the President they would like to make the appointment. In stark contrast, following the death of Ruth Bader Ginsburg in September 2020, McConnell pushed the Senate to confirm Amy Coney Barrett merely weeks before the election. His justification that the circumstances were different because the Republicans controlled both the Senate and the White House was widely criticized as a political maneuver and double standard, further portraying the Court as a partisan institution.
Stifled by the Democrats' opposition to Neil Gorsuch in 2017 and increased partisanship, the Republicans, led by Mitch McConnell in 2017, invoked the ‘nuclear option’, striking down the filibuster for confirmations. This required the number of votes to confirm a Justice to go from 60 to 51. By doing so, the Republicans allowed themselves to confirm Supreme Court Justices without any support from Democrats, resulting in more ideologically extreme justices. Recent confirmation margins reflect clear ideological divides, with nominations showing little to no bipartisan compromise; such as Ketanji Brown Jackson (53-47), Amy Coney Barrett (52-48), and Brett Kavanaugh (52-48).
Ethics and Accountability under Scrutiny
Recent scandals have raised further questions about the accountability of Supreme Court Justices. For example, Justice Clarence Thomas accepted $4.75 million USD in undisclosed gifts, including private flights, luxury vacations, and tuition payments. Similarly, Justice Stephen Breyer accepting 225 subsidized vacations between 2004 and 2018. These are not isolated incidents, with all members of the Court totaling 1,309 sponsored trips in 14 years, according to Government Watchdog OpenSecrets. These are instances that show a clear conflict of interest, undermining public trust in the Supreme Court to be held to a high ethical and transparent standard. Unlike other courts, the Supreme Court is not held to an enforceable code of ethics that disciplines wrongful behaviour that is overseen by a Bipartisan Judicial Conduct Committee. To put this into perspective, senior cabinet officials have to provide disclosure documents and are forbidden from accepting any gifts of significant value. Even civil servants are prohibited from accepting gifts over $50 in value, while a Supreme Court Justice can accept millions without consequence. As the highest Court in the country, the Supreme Court must be held to the highest standards, meaning independent enforcement and audit, and clear procedures for reporting misconduct.
Reformation through a Supermajority
This increasing politicization of the Court, combined with ethical concerns highlight an accountability crisis that cannot be ignored. However, all is not lost, as there are several methods for reform that have been suggested by legal scholars. Firstly, if a 60-vote supermajority was required to confirm nominees, it would ensure more moderate judges were selected by the President to ensure their candidate reached a consensus, rather than satisfying only the ideological base. For example, in Germany, two-thirds consensus in both the upper and lower houses of government must be reached to approve a Justice. With 80 per cent of Germans having a high degree of trust in the Court, it effectively forces cross-party cooperation, ensuring moderate candidates are selected - instead of ideological loyalists.
Invoking Term Limits and the Problem of Lifetime Appointments
Another widely supported suggestion for reform is imposing fixed term limits. Thomas Jefferson, a zealous advocate of democratic accountability, sharply criticized lifelong appointments, stating it places the nation ‘under the despotism of an oligarchy’. Arguing similarly in their 2006 paper “Term Limits for the Supreme Court: Life Tenure Reconsidered", scholars Steven Calabresi and James Lindgren suggest an 18-year non-renewable term for justices. Calabresi argues that by implementing staggered 18 year terms, it means a Justice is replaced every two years. This structure would allow each president to be able to appoint two per term. Two appointments per term would bring predictability to the Supreme Court, eliminating strategic retirements; resulting in a fairer, less partisan confirmation process. This would prevent Justices from remaining in power until their death, such as Justice Bader Ginsburg, who served until her death at age 87, missing oral arguments throughout her frequent hospitalizations. Considering the nature of such a taxing and influential position in society, it is important that these guardrails are put into place to ensure that Justices are cognitively and physically able to make these decisions at the highest level. Research shows that there is empirical merit behind this suggestion.
The American Economic Association found that states that had implemented term limits had seen an increase of 25 to 30 percent in positive citations, signalling more effective ruling through fresh perspectives. With justices often serving well into their 70s and 80s, ruling on topics like student loan forgiveness, AI, digital privacy, and climate change, justices are now making decisions about pressing social issues that they may never personally see the consequences of. For example, Oklahoma v. EPA (2025), the Court ruled against the Environmental Protection Agency’s ability to regulate carbon emissions, impacting younger generations’ fight against climate change. While it is true that many political leaders make decisions that they may not live to see the consequences of, such as Presidents or Senators, lifetime-appointed Supreme Court Justices do not have term limits, or face electoral scrutiny to ensure accountability.
The Road Ahead: Can the SCOTUS Regain its Legitimacy?
As public trust continues to decline in the Court, reforms such as a supermajority confirmation, age-caps, term limits, and a binding ethical agreement would restore balance and reiterate the Court’s role as an independent arbiter of society. These changes would be difficult in the current political climate, but without them, the Court risks losing all legitimacy, a cornerstone of American democracy.