Federal Judiciary and Court Reform: What Each Position Is Protecting

In April 2023, ProPublica published the first installment of what became an eighteen-month investigative series on the Supreme Court. The initial report documented that Justice Clarence Thomas had accepted at least $4 million in undisclosed gifts, travel, and real estate transactions from Republican megadonor Harlan Crow over two decades — luxury travel on private jets and superyachts, private school tuition for Thomas's great-nephew, the purchase of his mother's home in Savannah, Georgia. Thomas had disclosed none of it. He later argued that the gifts fell under a "personal hospitality" exemption and that the financial disclosure rules binding lower federal court judges did not technically apply to Supreme Court justices, who under then-existing practice policed their own compliance.

The Court's initial response was silence. When senators demanded testimony, Chief Justice John Roberts declined to appear, citing separation of powers concerns. When the Senate Judiciary Committee released a detailed report documenting the Thomas gifts alongside undisclosed travel accepted by Justice Samuel Alito from hedge fund manager Paul Singer — whose firm, Elliott Management, had interests before the Court — the nine justices adopted the Court's first-ever written ethics code in November 2023. It contained no enforcement mechanism, no recusal standards enforceable by any external body, and no process for independent review. Critics called it a statement of aspiration. The Court called it sufficient.

But the ethics debate, as real as it is, runs on a parallel track to two larger arguments that it has catalyzed without resolving. The first is about the Court's composition: the 6-3 conservative supermajority was produced in part by the Senate's refusal to act on President Obama's nomination of Merrick Garland in February 2016 — with ten months remaining in his term — and by the Senate's confirmation of Amy Coney Barrett in October 2020, eight days before a presidential election. The second is about the Court's power: the expansion of what legal scholars call the "shadow docket" — emergency orders and stays issued without oral argument, full briefing, or written opinions explaining the reasoning — and the development of doctrines like the major questions doctrine that substantially limit Congress's ability to delegate authority to executive agencies. These three debates have become entangled in a public argument about what "court reform" means, who wants it, and whether the court's legitimacy crisis is primarily an ethics failure, a structural failure, or both.

The positions that have crystallized around these debates are not variations on a shared concern. They are different diagnoses with different remedies, protecting different things.

What judicial independence defenders are protecting

The counter-majoritarian function — the proposition that constitutional rights are meaningful precisely because they can be enforced by an institution insulated from democratic pressure, and that weakening that insulation to correct perceived injustices destroys the mechanism that makes the injustice correctable in principle. Alexander Hamilton's argument in Federalist No. 78 remains the foundation: the judiciary is the "least dangerous branch" because it lacks the power of the sword and purse; its only tool is judgment, and the independence of that judgment is what makes it valuable. An independent judiciary can tell a popular majority that what it wants to do to a disfavored minority is unconstitutional. A judiciary composed to serve whatever coalition currently holds the Senate cannot. The judicial independence position is not primarily a defense of any particular set of rulings — it is a defense of the institutional capacity to rule against whoever is currently in power.

The institutional minimalism argument that the Court's legitimacy depends on its being seen as something other than a political institution — and that court-packing, even if procedurally permissible, would permanently convert public perception of the Court into a responsive arm of whichever party controls the Senate. Chief Justice Roberts has articulated this argument most consistently, including in his 2019 year-end report: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their best to do equal right to those appearing before them." Roberts's critics find this claim empirically implausible — the Court's voting patterns correlate strongly with the appointing president — but his institutional argument does not require that judges be genuinely non-ideological; it only requires that the appearance of non-ideological adjudication is what allows the Court to function as an authoritative resolver of disputes that the political branches cannot resolve. A Court that everyone treats as a political institution is a Court whose decisions can be resisted without institutional cost, which is a different kind of problem. What independence defenders are protecting is not the fiction of judicial neutrality but the functional value of the fiction — the possibility that parties in intense political conflict will accept a judicial ruling as legitimate rather than as the will of the opposing faction.

The argument that the existing checks on the federal judiciary — the Senate confirmation process, Congress's jurisdiction-stripping authority under Article III, the constitutional amendment process, impeachment — are sufficient accountability mechanisms that expansion advocates are bypassing rather than using. The Federalist Society and much of the conservative legal movement make this argument explicitly: if you disagree with judicial doctrine, the remedy is to win elections that produce different appointments, to advocate for constitutional amendments, or to pass legislation that limits the jurisdiction of federal courts. The Garland episode, on this view, was hardball politics — constitutionally permissible, however norm-violating — and the response to hardball politics should be winning the next election, as Democrats did in 2020, not retaliating with an even larger escalation that would permanently alter the Court's character.

What court expansion advocates are protecting

The democratic accountability principle — that a political institution whose current composition was shaped by procedural manipulation has a legitimacy deficit that cannot be resolved through normal appointment processes, because those processes themselves have been compromised. Demand Justice, the progressive advocacy organization founded in 2018 to push court reform, frames the legitimacy problem precisely: the current 6-3 supermajority includes two justices — Neil Gorsuch and Amy Coney Barrett — whose appointments depended on the Senate applying two different rules to comparable situations, eight months before an election (Garland blocked) versus eight days before an election (Barrett confirmed). The logical structure of the argument is that the Court's current composition does not reflect the outcome of a neutral process but a specific political choice to apply asymmetric standards — and that the only democratic remedy for an asymmetric input is a structural correction of the output.

The historical argument that nine is not a constitutionally fixed number — Congress changed the size of the Supreme Court six times between 1789 and 1869 — and that the current sacrosanct status of nine is itself a convention that one party has exploited while treating it as binding on the other. The Supreme Court began with six justices. It has had as few as five and as many as ten. The number nine was set by Congress in 1869 and has not changed since — not because the Constitution requires it but because the political costs of changing it have been high, including FDR's failed court-packing plan in 1937. Expansion advocates like Elie Mystal (Allow Me to Retort, 2022) and Ryan Cooper argue that FDR's plan failed politically, not constitutionally, and that the taboo around it has served conservative interests precisely because they have been more willing to bend procedural norms in the appointment process. If the number nine is not constitutionally required and can be changed by statute, the question of whether to change it is a political question, not a constitutional one — and the political answer should factor in how the current nine came to be there.

The substantive argument that the consequences of the current Court's jurisprudence are serious enough to justify structural correction — Dobbs v. Jackson Women's Health Organization (2022) eliminating the constitutional right to abortion, West Virginia v. EPA (2022) and Loper Bright Enterprises v. Raimondo (2024) limiting the administrative state's authority, Trump v. United States (2024) establishing broad presidential immunity from criminal prosecution for official acts — and that waiting for these doctrines to be reversed through normal appointment processes will take decades. The expansion argument is not only procedural — it carries a substantive load. If you believe that Dobbs eliminated a right that 60 percent of Americans think should exist, that the major questions doctrine makes it impossible to regulate carbon emissions at scale, and that the presidential immunity ruling has no limiting principle that prevents presidents from committing crimes while in office, the prospect of waiting for three justices over sixty-five to retire is not an answer. Expansion advocates are protecting the democratic principle that the law should roughly correspond to what the governed consent to — and arguing that the current Court's distance from that correspondence is not a temporary deviation but a structural condition produced by specific choices.

What term limits and structural modernizers are protecting

A depressurized appointment process — the recognition that the escalating confirmation wars of the past three decades are destroying the Senate as an institution and converting each vacancy into a total political mobilization that is bad for the judiciary, bad for the Senate, and bad for democratic culture. The presidential commission on the Supreme Court of the United States, convened by President Biden in 2021, found "substantial" support among legal scholars across the political spectrum for 18-year staggered terms that would give each president two appointments per term. Steven Calabresi and James Lindgren, both conservative legal scholars, published "Term Limits for the Supreme Court" in the Harvard Journal of Law & Public Policy in 2006 — one of the most systematic constitutional arguments for term limits — arguing that life tenure has become dysfunctional in an era of modern medicine where justices regularly serve into their eighties and nineties, making each vacancy unpredictable in timing and therefore existential in political consequence. Gabe Roth of Fix the Court, the nonpartisan advocacy organization, has made this argument for a decade: the problem is not who is on the Court but what the appointment process has become.

The lottery problem: that life tenure combined with strategic retirement means that a president's ability to reshape the Court's jurisprudence for a generation can turn on whether a sitting justice happens to die or retire during that president's term — producing outcomes that have no relationship to the democratic preferences the election expressed. President Obama nominated two justices in eight years; President Trump nominated three in four years, including one whose seat was created by the Senate's decision not to act on a nominee for eleven months. If Antonin Scalia had died in 2015 rather than 2016, or if Ruth Bader Ginsburg had retired in 2013 when her health was better, the Court's current composition would be radically different. This is not a function of democratic choice but of biological accident and strategic calculation by individual justices. Structural modernizers are protecting the principle that the Court's ideological direction should be a function of electoral outcomes averaged across time, not of which justice happens to serve longest.

The bipartisan appeal of term limits — which, unlike expansion, does not require either party to permanently accept the other's advantage — and the argument that it is the only structural reform with genuine cross-partisan support in a legislature where judicial reform otherwise cleaves precisely along party lines. Polling consistently shows majority support for Supreme Court term limits among both Democrats and Republicans. The arguments against expansion include the expansion spiral objection — that if Democrats add four justices, Republicans will add four more, producing a court of seventeen, then twenty-five — which does not apply to term limits, which fix the number at nine while regularizing the replacement cycle. Structural modernizers are protecting the possibility of a reform that both parties can accept without one perceiving itself as permanently disadvantaged — which is the only kind of structural reform that is durable enough to actually depoliticize the Court over time.

What ethics and accountability reformers are protecting

The basic principle that an institution claiming the authority to interpret law cannot exempt itself from the transparency and ethics rules that every other member of the federal judiciary is bound by — and that the legitimacy crisis the Court is experiencing is primarily a crisis of accountability, addressable without expanding the Court's membership. Every federal judge below the Supreme Court is subject to the Code of Conduct for United States Judges, which governs financial disclosure, gift acceptance, recusal standards, and outside income. Every other federal judge is required to disclose travel and gifts above minimal thresholds, to recuse when their impartiality might reasonably be questioned, and to provide written explanations for recusal denials. None of this applies to the nine justices, whose compliance with the parallel requirements of 28 U.S.C. § 455 — the general recusal statute — is entirely self-policed. The SCOTUS Ethics, Recusal, and Transparency Act (SCOTA), introduced in the Senate by Sheldon Whitehouse, would apply the same code that governs lower courts to the Supreme Court and establish an inspector general to receive and investigate ethics complaints. Ethics reformers are not arguing that the Court's composition should change — they are arguing that the institution is currently ungoverned by the rules it enforces on others, and that this is both a concrete harm and a correctable one.

The specific harm documented by the ProPublica series: that Justice Thomas participated in cases involving Harlan Crow's interests and entities connected to donors who had provided him gifts he had not disclosed — and that without mandatory disclosure and enforceable recusal standards, neither the parties in those cases nor the public had the information necessary to identify the conflict. ProPublica's reporting, led by Joshua Kaplan, Justin Elliott, and Alex Mierjeski, identified nineteen years of undisclosed gifts from Crow to Thomas, including a 2014 property transaction in which Crow purchased the Savannah home of Thomas's mother and two relatives for $133,363 — a transaction in which Crow paid above market rate, Thomas's mother continued to live there, and nothing was disclosed. The specific legal concern is not that Thomas was bribed in the sense of exchanging votes for cash — there is no evidence of that — but that the recusal analysis a party with interests before the Court would perform was made impossible by the non-disclosure. The ethics reform argument rests on the proposition that disclosure rules serve a function before cases are decided, not only in retrospective investigation.

The argument that ethics reform is the achievable reform — that it can be accomplished by statute, does not require a constitutional amendment, does not trigger the expansion spiral, and can attract Republican support precisely because it does not require Republicans to accept that the Court was improperly constituted. Senators Lisa Murkowski and Susan Collins have at various points expressed openness to SCOTUS ethics legislation — a level of bipartisan interest that expansion proposals have never attracted. Legal ethics scholar Charles Geyh of Indiana University Maurer School of Law has argued that Congress's authority to regulate judicial ethics flows directly from its constitutional authority over the federal courts, and that the claim that applying an ethics code to the Supreme Court violates separation of powers is historically and textually unpersuasive. What ethics reformers are protecting is the credibility of the institution itself — arguing that an institution perceived as operating above the rules it enforces on others cannot long maintain the deference it depends on.

What this map cannot do

This map does not tell you which reform is correct. It does not resolve whether the Garland blockade delegitimized the Court in a way that justifies structural correction, or whether correction through expansion would cause more delegitimization than it cures. It does not adjudicate the constitutional question of whether Congress can impose term limits on Article III judges without a constitutional amendment — a question on which serious originalists disagree, with some arguing that "good behavior" tenure is a constitutionally guaranteed floor and others arguing it can be satisfied by life tenure on the federal judiciary in a different capacity. And it does not resolve the deepest question in this debate: whether the legitimacy the Court currently has is residual institutional reputation that can be preserved by incremental reform, or whether it is already sufficiently compromised that only structural change can restore it.

What this map can do is show that the debate has at least four different diagnoses operating simultaneously — ethics failure, structural illegitimacy, appointment dysfunction, and counter-majoritarian overreach — that do not all have the same remedy. Someone persuaded by the ethics argument is not necessarily persuaded by the expansion argument; someone persuaded by the term limits argument is not necessarily persuaded that the Court's composition is illegitimate. The reform coalition is fractured not because its members disagree about whether something is wrong but because they disagree about what is wrong, and the diagnosis shapes what counts as a fix.

What the disagreement is really about

Beneath the four positions is a single unresolved tension that none of them can dissolve: the counter-majoritarian dilemma. The Court's power to strike down legislation that democratic majorities support is simultaneously its most important function and its deepest democratic problem. It is the most important function because constitutional rights require protection from exactly the majorities most likely to violate them — popular majorities do not typically want to protect the rights of unpopular minorities, which is when protection most matters. It is the deepest democratic problem because the people who exercise that protection are unelected, serve for life (or for decades), and cannot be removed except through impeachment, which requires a supermajority of the Senate and has never been used to remove a sitting justice.

Every position in this debate is a different answer to the question of how much the counter-majoritarian difficulty should be constrained. Independence defenders accept it fully: the counter-majoritarian nature of judicial review is not a bug but the feature. Expansion advocates want to bring the Court into closer alignment with democratic majorities by adjusting its composition. Structural modernizers want to limit any individual president's ability to stack the Court by regularizing the appointment cycle. Ethics reformers want to bring the Court into alignment with the accountability norms that govern the rest of the legal system. These are not the same answer, and they are not compatible in the way that "we all basically agree, we just disagree on means" framings suggest. They reflect genuinely different beliefs about what courts are for.