Democrats have turned their attack on the Supreme Court following this week’s landmark ruling that granted former President Trump broad immunity from criminal prosecution, hoping a court-focused messaging offensive can give their campaign a boost ahead of the November election.
Democrats have laid out a long list of reforms they would like to adopt if voters give them a House majority, some more aggressive than others. The list includes imposing term limits on Supreme Court justices, creating a formal (and enforceable) code of ethics for judges to follow, increasing the number of Supreme Court justices, and giving Congress more power to oversee the actions of judges.
Some lawmakers have gone a step further, calling for the impeachment of several conservative judges who have refused to recuse themselves in cases involving alleged conflicts of interest.
None of these proposals are likely to become law, given the growing expectation that Democrats will lose control of the Senate and possibly the White House next year.
But House Democrats are still pushing for reforms to galvanize voters who worry the court has become too aggressive — and too unaccountable — since conservatives gained a 6-3 majority under President Trump.
To underscore its strategy, the Biden administration launched a seven-figure ad buy this week to draw attention to the Supreme Court’s decision on presidential immunity, Axios reported Wednesday. Congressional Democrats are also hoping that public backlash against a number of conservative rulings, including a 2022 decision to repeal constitutional abortion rights, will sway voters on their side.
“They’re unleashing rage across America, and there’s no stopping it,” House Minority Leader Hakeem Jeffries, Democrat of New York, said last week.
Here are five reform proposals the Democratic Party is pushing ahead with the November elections.
Parliamentary Oversight
Perhaps the least controversial of these proposals is the idea that Congress should create new oversight of the Supreme Court, a change supported by party leaders such as Jeffries.
Under current law, high court judges largely exercise self-oversight when it comes to ethics issues, including deciding to recuse themselves from cases if they have a conflict of interest or suspected conflict of interest.
Democrats have been incensed since reports emerged that Justice Clarence Thomas’ wife played a key role in President Trump’s effort to overturn the results of the 2020 election and that two of Justice Samuel Alito’s homes were decorated with flags linked to conservative political movements, including President Trump’s “Stop the Steal” campaign.
Both justices have rejected calls to recuse themselves from cases related to the Jan. 6, 2021, attack on the Capitol, including the recent presidential immunity lawsuit.
Democrats have introduced several bills aimed at creating new layers of oversight for the courts.
Some bills would give new oversight powers directly to Congress, while others would create an investigative division within the Supreme Court to look into allegations of unethical behavior and report back to Congress.
It’s unclear what strategy Democratic leaders will pursue if they take control of the House, but they have vowed to act swiftly.
“It is up to Congress, at the very least, in a system of checks and balances between independent and co-equal branches of government, to provide responsible oversight of the judicial branch,” Jeffries said earlier this year. “And I am confident that the first opportunity to do just that will be that we will participate in oversight, not shy away from it.”
Code of Ethics
Another proposal gaining support among House Democrats is creating a formal ethics code for judges to follow. The idea is not new, but it has gained momentum following reports that Justice Thomas received millions of dollars in travel allowances and other gifts from Harlan Crow, a conservative billionaire who has long donated to Republican causes.
Mr. Thomas did not initially report the gifts on required financial disclosure forms, a omission he called an inadvertent oversight.
Under pressure and with public confidence in the Supreme Court waning, it adopted its first-ever code of conduct in November designed to clarify appropriate behavior and restore the court’s flagging reputation. A key provision of the code says judges should “avoid misconduct and the appearance of misconduct in all their activities.”
But critics say the effort falls short of the reforms needed to curb what they see as corrupt behavior, especially because the code includes no enforcement mechanism. In response, Democrats on the House Judiciary Committee formed a task force to push for a series of specific court reforms, including a bill called the Supreme Court Ethics, Transparency and Challenging Act that would adopt an ethics code with enforcement tools.
“The Supreme Court is out of control and driven by power and politics,” Rep. Hank Johnson, D-Ga., who spearheaded the task force that introduced the ethics bill, said by phone Wednesday. “This has to change.”
Term Limits
Once confirmed by the Senate, Supreme Court justices serve unlimited, often life, terms. Many Democrats say that system fosters a system in which justices become out of touch with changing public opinion and are not held accountable for obvious misconduct. They want to put a cap on how long justices can serve; Johnson’s proposal would limit terms to 18 years, allowing for quicker rotation of justices and the ideologies they espouse.
Rep. Glenn Ivey (D-Md.), a former University of Maryland law professor and current member of the Judiciary Committee, noted that judges in his home state have term limits and a mandatory retirement age of 70. In light of the Supreme Court’s immunity decision, Ivey said Congress should consider similar restrictions for Supreme Court justices.
“I’ll admit I wasn’t thinking about term limits or anything dramatic like that, but I think the direction they’re heading and the removal of guidelines not just for ourselves but for the president, I think we need to get involved on a different level,” Ivey said.
“What that looks like varies,” he continued, “but to the extent that the Supreme Court has now become a polarized institution similar to the political branch, I think that’s probably something we really should be doing.”
Fill up the court
Liberal Democrats have long pushed for more justices on the Supreme Court, an effort that gained traction after the court overturned Roe v. Wade and has gained renewed momentum in the wake of the presidential immunity decision.
“I support Republican expansion of the Supreme Court because it is the surest way to finally balance this corrupt right-wing establishment, and I urge my colleagues to support expansion as well,” said Rep. Bill Pascrill (D-Jersey). Posted on social platform X.
Two other progressive senators, Johnson and Rep. Cori Bush (D-Missouri), cited their own legislation, the Justice Act, in reaction to Monday’s ruling.
The bill, supported by many liberals in both houses of Congress, would add four seats to the Supreme Court, bringing it to 13 justices.
Johnson said adding more justices would balance the court’s conservative leanings and bring it closer to contemporary public opinion.
“The Supreme Court at this point is full of right-wing extremists. They’re trying to take our country in a direction that’s against the public interest. It’s against our democracy. And it’s a naked display of power,” Johnson said in an interview with The Hill. “What they’re doing is transferring power to themselves, to wealthy corporations and to the executive branch. It’s upsetting the delicate system of checks and balances that our democracy depends on.”
“So we can’t just sit back and let that happen,” he continued. “These judges have life tenure… [Some have another 10-20 years on the bench]”So the quickest solution is to weaken the authority of these right-wing, power-hungry ideological extremists, and we can do that by having more judges.”
impeachment
A less likely but more dramatic approach Democrats could take to challenge the Supreme Court would be to impeach conservative justices, an idea many liberals have pushed for.
Last month, Rep. Rashida Tlaib (D-Mich.) took to the House floor to call for the impeachment of both Thomas and Alito, and more recently, Rep. Alexandria Ocasio-Cortez (D-NY) made headlines when she said she plans to introduce articles of impeachment when the House reconvenes next week, shortly after the Supreme Court’s decision to exonerate the president.
“The Supreme Court has been engulfed in a corruption crisis that is out of control,” Ocasio-Cortez said in announcing the plan. “It is now Congress’ responsibility to protect the country from this authoritarian grip.”
To be sure, Ocasio-Cortez was vague on details — she didn’t say which judges she planned to target or whether she planned to force a vote on the case — but even mentioning the idea signaled a dramatic tightening of Democratic scrutiny of conservative judges.
Ocasio-Cortez’s office did not respond to repeated requests for more information.
The congressman could attack all six of the conservative justices, three of whom were nominated by Trump, or he could try to remove Justices Thomas and Alito over ethics concerns.
“These corrupt justices continue to strip us of our rights while taking bribes from billionaires who do business on the Supreme Court,” Tlaib, who also supports term limits, binding ethics rules and an expansion of the court, said in an email this week. “We need urgent action in Congress to hold these extremists accountable.”
But not all Democrats are on board.
Ivey said both Thomas and Alito should have recused themselves from the immunity case, and noted their ties to Thomas in particular were “a classic conflict of interest,” but stopped short of calling for impeachment.
“I think that’s going too far,” Ivey said.
There is little precedent for such drastic action: Former Supreme Court Justice Samuel Chase was impeached in 1805, the only justice to be punished by impeachment, but the Senate acquitted him.
