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Many are calling for the Supreme Court, a non-partisan institution by design, to be reformed.

Credit: Danny Donoso Kugler

The topic of United States Supreme Court reform has been hotly debated for years now. Everyone from media outlets to politicians to citizens alike have staked the claim that the court’s legitimacy has been fundamentally threatened by the influence of partisanship. This is despite rebounding Supreme Court approval ratings and a decreasing gap between favorability among Republicans and Democrats, in light of what the media frequently describes as a “conservative majority.” So, does the Supreme Court, in fact, need reform? 

Contemporary discourse would lead you to believe that the Supreme Court is a bench occupied by those working at the whims of partisan preferences, but the reality is much more nuanced. 

First and foremost, the U.S. Supreme Court was never “apolitical.” The myth of “legal realism,” which is the belief that justices are unbiased arbiters of the law, is not only incorrect but is not what the founders intended. The Supreme Court deliberates on highly political topics, therefore requiring its justices to consider political implications of their decisions. Even more, the logistics of the court’s composition is left up to Congress, a highly political institution. Moreover, the Supreme Court requires public approval to retain its legitimacy even if the justices aren’t directly voted in by the people. 

With regard to reform specifically, as explained by Professor Amanda Shanor from the Penn Legal Studies department who specializes in constitutional law, “All powers of court design [go] to Congress; they have a lot of power to make changes to the court within the Constitution. However, as a matter of Constitutional norms … it becomes a question of whether or not Congress has the political will.”

Secondly, this “hyper-partisanship” doesn’t really exist on the court at all. In 2019, the U.S. Supreme Court heard 72 cases, of which only 20 were split to any degree (meaning that they weren’t decided by a majority of more than five justices). Within those 20 cases, only eight were split along ideological lines, with the Supreme Court justices siding with one another based on their “conservative” or “liberal” status. This has held true into 2020 as well, with the freshman justices siding with their liberal peers even on heated politicized cases, much to the dismay of the conservative base. The most notable example of this is Justice Barrett’s public siding with her liberal constituency on the issue of the Alabama man who wanted his pastor present at his execution, leading to his request being granted.

This is not to say that these justices do not have beliefs and experiences or subscribe to schools of thought that shape their decision making. Rather, they subscribe to different “brands” of these ideological views, a point upheld by Professor Shanor. These justices don’t usually decide on cases in ways that are “fundamentally different than their historical record,” but instead have different things that they prioritize when making decisions. For Justice Barrett, it is religious freedom.  

The reality is, as long as justices are not voting in a unified way purely based on political party lines, which is evidently difficult to do as a result of the nuance of Supreme Court cases, the court is not lacking in its “fundamental legitimacy” as modern media coverage often implies. This is where issues with proposed Supreme Court reform arise. 

Recently, House Democrats introduced a bill to increase the number of Supreme Court justices from nine to 13. However, this decision would likely only politicize the court more by creating a push and pull of parties wanting to “add” more justices as the opposing ideological camp gets to put more justices on. Constitutional law professor Rogers Smith from the Penn Political Science department added on this subject, “It would probably exacerbate already heightened perceptions that the court’s decisions reflect partisan preferences. The justices could and, we can hope, still decide cases with integrity, however, no matter their number or their manner of appointment.” 

While all of this stands true, it does not mean that the court would not benefit from reform. It is without question that the Supreme Court nomination process is highly politicized. Professor Shanor highlighted the legal community’s general consensus in the introduction of term limits, likely hovering around 18 years. This will help ensure that generations have their representation on the court and decrease some of the heightened political pressure to put “younger and more ideologically consistent” justices on the court, making the nomination processes smoother. 

President Biden recently committed to investigation into Supreme Court Reform through the establishment of his Presidential Commission on the Supreme Court of the United States. With a diverse array of legal scholars, it is likely that we will see a fair conclusion on reform. Nevertheless, Sen. Joe Manchin’s (D-WV) commitment to upholding the filibuster makes it unlikely in the near future — the possibility of filibustering will likely impede any legislative attempts at reforming the court.

The U.S. Supreme Court, particularly in a country where Congress is often at a standstill, plays a major role in many social, economic, and political affairs. Everything from civil rights to civil liberties are challenged regularly on the bench, therefore making the composition of the court something that should be important to every one of us, particularly as civically-minded Penn students. This is exemplified in the recent case which has just been put on the docket challenging a Mississippi law that prohibits elective abortions after 15 weeks.  

No matter your political beliefs, it is evident that adding more partisan tensions to a court that, against all odds, is fighting to remain a nonpartisan institution is not the solution. While reform may be necessary to decrease hyper-partisan influence, it must be done in a way that targets the nomination process rather than the bench itself. 

LEXI BOCCUZZI is a College rising sophomore studying philosophy, politics, and economics from Stamford, Ct. Her email is abb628@sas.upenn.edu.

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