The Supreme Court’s legitimacy is vital for maintaining public trust and ensuring its role as an impartial arbiter of the law. In recent years, however, this legitimacy has been challenged by perceptions of partisanship and outdated processes. Here, we explore several proposals to restore the Court’s standing in the eyes of both the public and the legal community.
Judicial confirmation processes have become increasingly fraught, raising concerns that judges are seen more as political figures than impartial actors. A proposal by Thomas Harvey and Thomas Koenig suggests an alternative path for confirmations. If a nominee cannot secure a supermajority of 60 votes, they might still be confirmed with a bare majority in two consecutive Congresses. This dual-track approach aims to place responsibility on voters and potentially speed up confirmations by reducing the efficacy of partisan delay tactics.
Another aspect of restoring trust lies in enforcing ethical standards. In 2023, the Supreme Court adopted its first ethics code, but without sufficient enforcement mechanisms, this step may prove insufficient. The establishment of an independent board of retired federal judges could provide oversight, offering recommendations and issuing censure where necessary, thus reinforcing public confidence in judicial integrity.
The Court’s docket has also come under scrutiny. The perception that the Court selectively hears cases, leaving crucial issues unresolved, exacerbates public frustration. Increasing the number of cases heard each term, or lowering the requirement for granting review, could help present a more balanced view of the Court’s work, reducing the outsized focus on specific high-profile cases.
Transparency and media exposure represent another critical area. While live audio of proceedings could provide public insight, cameras might shift the focus away from legal arguments toward media-friendly soundbites. Maintaining current audio protocols while eschewing visual recordings might preserve the Court’s collegial atmosphere.
Finally, addressing forum shopping and handling tied decisions are necessary for bolstering judicial fairness. Random assignment of judges for cases seeking nationwide injunctions could mitigate perceptions of bias. Additionally, a strategy to resolve ties—whether through appointing a temporary judge or allowing a vote by a panel of senior justices—could enhance decision-making consistency.
These suggestions, detailed in Sarah Isgur’s book, Last Branch Standing, highlight that addressing both procedural and perceptual issues is essential for restoring the Supreme Court’s legitimacy. By implementing meaningful reforms, the Court can reinforce its role as the impartial guardian of the Constitution.
For a full discussion, you can refer to the original commentary on SCOTUSblog.