Legal and public policy experts assessed potential Supreme Court reforms during a panel at Harvard Law School on Wednesday.
Law School Professor Stephen E. Sachs ’02 moderated the panel, which included professors from Yale Law School, Duke Law, University of Virginia, University of New South Wales Sydney and from Harvard Kennedy School. The panel discussed the President’s Commission on the Supreme Court of the United States, which released its final report outlining proposed changes to the court in December 2021.
Panelists agreed that any reform should both insulate judges from partisan politics and preserve the court’s legitimacy.
Neil S. Siegel, a law and political science professor at Duke Law, said the legitimacy of the court “always exists, or does not exist, in the minds of a public.” He added that judges should therefore strive to be “beyond reproach” and should recuse themselves if necessary.
“I would like to see judges act more like judges,” Siegel said. “I would like to see them act like their robes were black, not blue or red.”
He pointed out that the court has been around for centuries and will endure long after the current tenure of the judges.
“Sometimes I worry that at least some of the judges sometimes don’t really appreciate that,” he said.
Maya Sen, a professor of public policy at the Kennedy School, said the Supreme Court no longer represents the average American, especially in light of the court’s recent rightward shift. After three conservative justices were confirmed in just four years under former President Donald Trump, the court reached its current 6-3 conservative majority.
“The Supreme Court is really out of step with the majority of Americans anymore,” Sen said. “The court really isn’t representative of the average American, but it’s actually currently much more representative of the average Republican Party voter.”
Sen pointed to Judge Amy Coney Barrett’s rushed confirmation as a catalyst for politicizing the court and public disapproval of her.
She said the misalignment of public opinion over court decisions has contributed to calls for court reforms.
“The more people see court decisions in a way that is opposite to their own views, somehow in conflict with their own views, the more likely they are to support things like term limits and court expansion,” said Sen.
Still, panelists highlighted the dangers of filling in the pitch, with Siegel warning that filling in the pitch is “almost always a really bad idea.”
“This risks seriously undermining, if not destroying, the legitimacy of the court,” he said. “I think that raises the question of whether we want two branches of government or three.”
He suggested that a “low-hanging fruit” that could be implemented to improve the court is the adoption of a code of ethics.
“It’s really not acceptable that they are the only federal judges to whom a code of ethics does not apply,” Siegel said. “They should adopt it themselves and try in good faith to comply with it.”
Rosalind Dixon, a professor at UNSW Sydney, warned that court reform efforts must ensure public confidence in judges is not eroded.
“We need to approach this with the goal of strengthening democratic politics and encouraging a more responsive court,” Dixon said. “But not to further alienate a conservative court by moving away from its absolutely most fundamental function, which is to uphold the rule of law in a constitutional democracy.”