This is the fifth installment in the short blog series, Cleanup on Aisle 47, which is meant to present ideas on rebuilding and strengthening U.S. democracy. (This is the half-way point in the series.)
Mitch McConnell got his wish – a fully-stacked Supreme Court (SCOTUS) that does the bidding of conservative Republicans and locks everyone else into their small-minded, undemocratic decisions, thus making the country less free. McConnell and the Republicans were quick to scream about progressive justices legislating from the bench, all while making sure to install justices that would legislate from the bench the “right” way, which is the pro-business, pro-wealth, conservative Christian, racist and sexist way. None of this progressive, liberal democracy for them, no, sir!
Due to their many pro-Trump, anti-democratic decisions, the six members of SCOTUS who have reworked laws to Donald Trump’s benefit have succeeded in making the Court untrustworthy. Because the Court doesn’t have its own enforcement mechanism (that’s what the Executive Branch is supposed to do), it depends on trustworthiness for Americans to believe in it. SCOTUS has squandered that trust. (https://uspollingdata.com/news/supreme-court-approval-2026/,
We have got to remake SCOTUS and install justices who will rebuild public trust in the institution. One thing to note is that, overall, the justice system is working fairly well in terms of the lower court judges, who keep ruling against the Trump regime’s unconstitutional actions. This includes judges who were appointed by Trump, though some of them continue to protect him or push his policy agenda from the bench (cough, cough … Aileen Cannon, Lawrence VanDyke, Matthew Kacsmaryk (https://en.wikipedia.org/wiki/Aileen_Cannon, https://ballsandstrikes.org/fedsoc-twelve/the-worst-trump-judge-is-lawrence-vandyke/), https://en.wikipedia.org/wiki/Matthew_Kacsmaryk)).
The problem has been that Trump runs to SCOTUS to rescue him from judicial decisions he doesn’t like. The six pro-Trump members of SCOTUS (Justices John Roberts, Samuel Alito, Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett) acquiesce to Trump’s demands and make their decisions via the shadow docket. ‘Shadow docket’ is the unofficial term for the emergency docket, which was meant for truly life-and-death or time-sensitive decisions, like stays on impending executions.
What the shadow docket has turned into is a way for these conservative justices to skirt having to explain their decisions, allowing them to twist the meaning of the Constitution and other laws to their preferred interpretation. Lower court judges look to Supreme Court decisions for guidance in how they interpret the law, but these shadow docket decisions don’t provide that.
In 2026, shadow docket decisions outnumbered regular court decisions for the first time in history, with 63 shadow docket rulings to 56 traditional rulings. (https://www.propublica.org/article/supreme-court-shadow-docket-rulings-milestone) When such momentous decisions are made in secrecy, is it any wonder SCOTUS has lost the public trust?
Unstacking SCOTUS
What, then, do we do to unstack the current court and improve it so that functions as a fair and transparent arbiter of justice and check on the executive and legislative branches?
If I had my druthers, I would impeach the six pro-Trump members of SCOTUS and remove them from the bench. And I would do it over their decision on only one case … Trump v. United States, in which they made Trump a king who can’t be held accountable for any illegal acts he takes in office. Article II, Section 4 of the U.S. Constitution states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Further, under Article I, Section 3, in discussing the Senate’s powers of impeachment, it says, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
This is pretty plain language that indicates the president isn’t allowed to do all the criming he wants in office without any accountability, something the Founding Fathers were keenly aware of in breaking free of a king. That six justices on the Supreme Court ignored this plain language in giving Trump a free pass for committing crimes shows that they have broken their oath to uphold the Constitution and are no longer qualified to serve. (https://www.supremecourt.gov/about/oath/textoftheoathsofoffice08-10-2009.pdf)
Okay, so what do we do to improve the court and make it less political and more trustworthy and transparent in the future?
There are many ideas floating around on how to do this.
Term Limits for SCOTUS
First, we give Supreme Court justices term limits. There is nothing in the Constitution that says they must serve for life, so we don’t even need a Constitutional amendment for this, just an act of Congress. Article III, Section 1 says that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” which gives no indication of time, and many state courts judges have term limits, so this isn’t a crazy, unworkable solution.
The length of time I’ve seen most often for SCOTUS term limits is 18 years, which is plenty of time to build the experience of justices on the court while protecting them from the changing political party in the White House.
Quite a bit has been written about term limits for justices (for many years, actually) from people who have thought a lot about this, so here are some sources for further thoughts, rather than me rehashing what they’ve said, although the Brennan Center’s idea about justices moving to senior status after their terms is worth considering in more depth.
https://www.brennancenter.org/our-work/research-reports/supreme-court-term-limits-are-constitutional
In a hopeful sign for SCOTUS reform, Senate Democrats recently introduced a bill to provide term limits for SCOTUS justices, and the public is behind this reform. https://abovethelaw.com/2026/07/senate-democrats-reintroduce-supreme-court-term-limits-bill-and-the-polling-has-never-been-friendlier/
Increasing the Size of the Court
Another reform being suggested for SCOTUS is to increase the size of the court, with the number of justices ranging between 15 and 27 total.
The Constitution has nothing to say about a specific number of justices, and the current number of justices – nine – was set back in 1869, not too long after the Civil War. (https://en.wikipedia.org/wiki/Judiciary_Act_of_1869) At that time, the population of the United States, not including Native Americans, was between 31 and 38 million people. The current U.S. population is over 342 million, a 10-fold increase, yet we continue to have the same number of justices to manage the major legal issues of a much larger population. (https://en.wikipedia.org/wiki/Demographic_history_of_the_United_States, https://www.census.gov/popclock/print.php?component=counter) If we’d added justices at the pace of population growth, we’d have 90 justices now.
Some legal commentators suggest adding just a few extra justices, enough to overcome decisions by the Trump Six, but that might lead Congress to adding a few more justices each time there is a change in the majority party of legislators, creating a political arms race in expanding the court.
Robert Hubbell, retired lawyer and author of Today’s Edition newsletter, suggests increasing the court to 27 members. (https://roberthubbell.substack.com/p/three-scotus-decisions-demonstrate) I’m leaning toward Hubbell’s suggestion because our country’s population has increased tremendously since SCOTUS became 9 members.
And, there’s actually a nonpolitical way to justify this number. We can tie it to the map showing the number of circuits for the U.S. Courts of Appeals and District Courts. (https://en.wikipedia.org/wiki/United_States_federal_judicial_district) There are eleven circuits plus the District of Columbia and the Federal Circuit. If we select two justices from each circuit, that brings us to 26 justices. We can add one justice as an at-large tie-breaker, which brings us to 27. If the population warrants adding or subtracting circuits, we can adjust the number of justices up or down by two per circuit.
Nominating SCOTUS Justices
When it comes to SCOTUS, we’ve got a Federalist Society problem. Six of the current members of SCOTUS – the Trump Six – are affiliated with The Federalist Society for Law and Public Policy Studies, “a group of conservatives and libertarians dedicated to reforming the current legal order.” It formed in 1982 in opposition to “a form of orthodox liberal ideology which advocates a centralized and uniform society” that its founders thought was dominating law schools and the legal profession. (https://fedsoc.org/about-us)
The Federalist Society advocates for limited government and an originalist interpretation of the U.S. Constitution, which means attempting to interpret the Constitution as the writers of it had intended at the time it was adopted. (https://en.wikipedia.org/wiki/Federalist_Society, https://en.wikipedia.org/wiki/Originalism) Following originalism requires disregarding changes in society and the country since the signing of the Constitution in 1787 and the Bill of Rights in 1789. Judging by the narrow ruling by SCOTUS (5-4) in Trump v. Barbara to preserve birthright citizenship, it appears that Constitutional Amendments aren’t automatically part of originalist interpretation. (https://apnews.com/article/read-the-supreme-courts-opinion-on-birthright-citizenship-0000019f190fd9d2a19f5b9f9f2e0000)
Supreme Court justices are supposed to judge cases on an apolitical basis, but Federalist Society justices don’t do that according to a 2025 analysis of their decisions.
“An analysis of almost 25,000 votes of Supreme Court justices from 1986–2022 shows that justices affiliated with the Federalist Society are about 10 percentage points more likely to cast a conservative vote than their non-affiliated counterparts, and the voting behavior of Federalist Society-affiliates is more ideologically consistent than non-affiliated justices.” (https://pmc.ncbi.nlm.nih.gov/articles/PMC12360514/)
According to the American Bar Association, as of 2025, there were 1.37 million lawyers in the United States. (https://www.americanbar.org/news/profile-legal-profession/) The Federalist Society has a membership of over 65,000 in its Lawyers Division and another 10,000 in its Student Division. (https://fedsoc.org/about-us) Taking just the Lawyers Division, only about 5 percent of lawyers belong to the Federalist Society, yet their affiliated members represent 66 percent of the Supreme Court. This organization has an out-sized influence on our highest court.
How do we ensure that the court isn’t stacked with Federalist Society justices who have an ideological bent that thwarts the Constitution in favor of conservative political positions?
I suggest we create an independent committee that includes an equal number of Democrats and Republicans from Congress, some retired judges and lawyers, plus citizens, so that nominees can be selected from more than Federalist Society members. (There would be term limits for members of this committee.) We could also look to selecting nominees geographically, with two from each judicial circuit.
The Brennan Center also has a sensible idea. They suggest “giv[ing] each president exactly two seats to fill per four-year term that expire if left unused.” Further, “to discourage obstruction [in the confirmation process], these two seats should “open” in the first year of the president’s term, and they should expire if they are unfilled at the end of four years so as not to provide a windfall to a future president.” (https://www.brennancenter.org/our-work/analysis-opinion/overlooked-idea-fixing-supreme-court)
If we could take the partisanship out of the selection process, perhaps it would make the confirmation process easier, as well. After the nominees are vetted by the independent committee, hopefully we could get a simple majority vote from Congress to seat them.
Ethical Rules with Teeth
Lawyers and judges are bound by professional rules of ethics throughout the country, except for Supreme Court justices. Every other lawyer and judge can be sanctioned and disbarred for unethical behavior, but not SCOTUS. Anyone else see a problem with this?
While SCOTUS recently (and grudgingly) adopted ethics rules after public outcry over Clarence Thomas’s acceptance of money and gifts from wealthy people who had business before the court, these ethics rules have no teeth. Justices can break the rules and not be held accountable because there is no enforcement mechanism. This has got to change.
I would create an independent ethics board made up of retired judges, Congress members, and members of the public to oversee and enforce SCOTUS ethics. As occurs in other ethics boards, there would be a variety of sanctions, including removal, depending on the violation.
A couple of additional points related to ethics:
Members of SCOTUS should not be allowed to accept gifts (a.k.a. bribes) from people or organizations with business before the court. If a justice has a conflict of interest, they must recuse themselves, which will be easier if we expand the court.
Justices should not be allowed to sign book or media deals or collect speaker’s fees or serve as political pundits while they are part of the court. By giving them term limits, they could engage in these activities after their time on the court.
Okay, now I’m going to do a speed round of ideas for improving the functioning of SCOTUS so that it works for most Americans, not just the privileged or those who support conservative causes.
No More Shadow Docket
We need to eliminate the shadow docket. Emergency decisions need to be limited and require justices to write their reasoning on them. If they don’t, they go in front of the ethics board. SCOTUS should not be making significant decisions without reasoning or explanation. Their work on decisions should be open to the public.
Fast-Track Cases When President Is Indicted
If the president is indicted for illegal activities, the case must be fast-tracked so that it gets to SCOTUS before the next election. None of this delay, delay, delay, drop the case. (Trump has been using delays to abuse the justice system all his life.)
Enforcement for Judicial Opinions
The Trump regime has ignored rulings by the court, but the judicial system has no way to enforce its decisions, other than fines and contempt rulings. The U.S. Marshall service needs to be put back in charge of helping the judicial system enforce its rulings, taking people (including presidents!) into custody for not abiding by its rulings. (Is there a way this could backfire? We’d have to think this through.)
Other Justice System Changes
No more judge shopping. There are too many lawsuits filed with judges who are handpicked for their political positions.
Did you know that law clerks currently have no legal recourse if a judge mistreats them? It’s true. Their position is not protected by employment law, which puts them at the mercy of abusive judges. There needs to be a way to hold judges accountable for mistreating law clerks and violating employment law. (https://www.legalaccountabilityproject.org/our-story)
We need to ban military judges from working in immigration courts. See: https://news.bloomberglaw.com/business-and-practice/hegseth-moves-to-order-military-lawyers-to-be-immigration-judges
As this post is already too long, I’ll leave you with one final thought. We need to overturn the anti-democratic decisions the Trump Six have made, like Trump v. United States, and scrap originalism.
What other ideas do you have for improving the functioning of SCOTUS and the judicial system? How would you change or build upon what I’ve suggested above?
Note: These are my personal views, not the views of my employer.
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