Notice And Comment: SCOTUS Ain’t Broke, So Don't Fix It

Recent rulings make clear that the Court isn't in dire need of major structural reform.

The Supreme Court of the United States (photo by David Lat).

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To paraphrase Chris Crocker — remember him? — “Leave. SCOTUS. Alone!”¹

The Supreme Court has handed down almost all of its biggest rulings in its most controversial cases of the Term.

And they’ve generally been… tame, even lame.

The Court did not strike down the Affordable Care Act.

It did not overrule Employment Division v. Smith and hold that religious freedom trumps everything else.

It issued narrow or nuanced rulings in a wide range of cases, concerning such subjects as student free speech, securities law, and the Fourth Amendment.

Instead of issuing bright-line rules, which is one way the Court can flex its muscle, it generally decided very little. In fact, there’s a decent argument that the Court decided too little this Term, failing to give guidance to lower courts, kicking multiple cans down the road, and guaranteeing many future fights.

So what does all this mean?

The reports of democracy’s death, at the hands of a 6-3, conservative Supreme Court, have been greatly exaggerated.

We are not in a “crisis” when it comes to the Supreme Court.

The Court is not “out of control,” “out of whack,” a “threat to democracy,” or “dangerously out of step with the people.”

The six conservative justices are not the “Nine Old Men.”²

And there is no urgent need for radical reform of the Court,³ at least as of now.⁴

Amirite? Please share your own views, in the comments (which is the whole point of Notice and Comment).

1. Speaking of Britney Spears, she’s back in the news and back in court, trying to end the conservatorship that has allowed her father to essentially run her life since 2008. At least based on the information that has come out so far, it seems to me that her case is strong.

2. Justice Amy Coney Barrett in particular does not appear to be the horsewoman of the right-wing apocalypse that opponents of her confirmation claimed she would be. See this column by Matt Lewis for The Daily Beast, Dems Who Raged Against Amy Coney Barrett Look Like Idiots.

3. Note the adjectives in this sentence, “urgent” and “radical.” I’m not saying SCOTUS can’t be improved. For example, many of the reform proposals supported by Fix the Court, a nonpartisan organization focused on making the federal courts more open and more accountable, are good ideas. In particular, having term limits instead of life tenure for justices is definitely worth exploring. All I’m really saying here is that the Court, while it has room for improvement, is not in a state of crisis or a menace to democracy.

4. “As of now”; the Supreme Court’s next Term will be big. If it radically expands gun rights or restricts abortion rights, then calls for dramatic change could grow. But again, at the current time, the case for “packing the Court” or similarly dramatic change appears… weak.

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