The Supreme Court is nearing the end of its term, with its decisions reflecting the influence of its conservative supermajority since 2020. Headlines often highlight the specific rulings, such as impacts on the Voting Rights Act. However, the deeper issue lies in why the court acts with such confidence. The emergence of what can be described as a ‘sovereign court’ has separated it from traditional American checks and balances.
Historically, the court operated with a fear of reversal. This kept the justices from straying too far from the constitutional mainstream. Past constitutional amendments and legislative actions have overturned Supreme Court decisions, such as the 2009 Lilly Ledbetter Fair Pay Act which addressed an earlier ruling.
In today’s climate of political gridlock, this fear has disappeared. A divided Congress is unlikely to pass corrective measures, and the long-lasting conservative majority on the court feels secure from future reversals. The absence of fear transforms the law into a vehicle for personal policy preferences, damaging its integrity.
To restore legitimacy, structural changes are needed beyond simply increasing the number of justices. A two-part approach is suggested to address the imbalance. First, Congress should use its constitutional authority to expand the court. Second, justices should hear cases in randomly assigned panels of three, with each panel having decision-making authority.
This approach changes the incentives for each justice. Rather than being ideological pioneers due to lack of oversight, justices would need moderation, knowing their decisions could be overturned by another panel. Moreover, a larger pool of justices appointed by different administrations would encourage diversity in judicial thought, reducing partisan control.
Concerns over potential inconsistency between different panels should be considered. Yet, the current system’s stability is more occupied than peaceful. A panel system promotes narrower rulings, encouraging justices to seek more consensus-driven outcomes.
This reform is not radical. Congress has historically adjusted the Supreme Court’s size, and currently requires the U.S. courts of appeals to use three-judge panels. It’s about returning the Supreme Court to a body grounded in law rather than ideology, embracing a humility that fosters public trust.
Paul M. Collins, Jr. is a professor at the University of Massachusetts Amherst and coauthor of ‘Supreme Bias: Gender and Race in U.S. Supreme Court Confirmation Hearings.’