Two-thirds of Americans want court reform in the aftermath of the U.S. Supreme Court’s landmark Dobbs v. Jackson Women’s Health Organization decision, which overturned a half-century of abortion rights that were guaranteed under the 1973 Roe v. Wade ruling.
“We’re in somewhat uncharted territory here,” says Carolyn Shapiro, professor of law at ITT Chicago-Kent College of Law. “For the first time in a very long time, maybe ever, there is increasing public appetite for making changes to the court, like adding seats and/or imposing term limits.”
Public approval of the U.S. Supreme Court hit a new low last month, with disapproval of the high court hitting its highest mark since Gallup started keeping track in 2000.
The pollster found that 53% of people disapprove of the job the Supreme Court is doing. Forty percent of people polled describe the court as being “about right” ideologically, while 37% say the court is “too conservative.”
The results of the Gallup poll, conducted September 1-17, come about a year after 58% of Americans said they approved of the Supreme Court, and a couple of months after the high court struck Roe down.
Shapiro, who is also co-director of the Institute on the Supreme Court of the United States (ISCOTUS), a community of scholars who study the Supreme Court, says that in addition to the abortion decision, many Americans feel the current court, made up of six Republican appointees and three Democratic appointees, is not representative of the American people.
“That’s the case, even though the Republican presidential candidates have won the popular vote exactly once since 1988,” Shapiro says. “Donald Trump was president for four years and did not win a majority and got three nominations. President [Barack] Obama was president for eight years and had two majority popular votes and had two [Supreme Court] seats. That’s an argument in favor of term limits, because the idea of term limits is that … each president, in each term, would have the opportunity to appoint two justices.”
A Politico poll conducted in June found that 62% of respondents support term limits for justices, with 23% in opposition. Forty-five percent favor expanding the number of justices on the court, while 38% oppose the move. The Constitution gives Congress the authority to expand the Supreme Court, which lawmakers have done seven times in the past.
“Increasing the size of the court to change its policies is not unprecedented, but it hasn’t happened in more than 150 years,” says Lawrence Baum, a retired political science professor at The Ohio State University. “And there’s something to be said for leaving things as they are. But there’s also something to be said for giving the other branches the chance to address what they see as an imbalance.”
Fifty-three percent of people polled support balancing the court with equal numbers of Democrats, Republicans and independents, while 30% are against it.
“What we have is a real minority court in the sense of it not representing the vast majority of the way Americans have voted,” Shapiro says. “It is constitutional. I don’t want to suggest it’s illegitimate in that sense, but I think it’s deeply problematic for the court itself to be so disconnected from the democratic process.”
Both Shapiro and Baum support the idea of term limits for Supreme Court justices.
“It takes away this random element that causes some presidents who are luckier than others to have more opportunities to select members of the court,” Baum says. “It also reduces, somewhat, the chance that somebody will stay on the court beyond the time when they can be effective.”
Term limits could end the political gamesmanship in the U.S. Senate that prevented Obama from appointing a justice after the death of Justice Antonin Scalia in February 2016, while allowing Trump to successfully nominate Justice Amy Coney Barrett after the September 2020 death of Justice Ruth Bader Ginsberg.
“We won’t have strategic retirements where a nominee retires in order to get the particular president to give their particular president that nomination,” Shapiro says. “Eighteen-year term limits are the proposal I’m talking about. That would return the length of justices’ tenure to actually what it was for the first few hundred years.”
Last year, President Joe Biden appointed a panel of experts to explore possible Supreme Court reform. The commission recommended a new code of ethics and more court transparency but stopped short of endorsing term limits or expanding the court.
Even without high court reform, Baum says there are ways of reducing the impact of unpopular Supreme Court rulings.
“Supreme Court decisions often leave a lot of room for people to respond in different ways. Think about the Dobbs abortion decision. As it stands now, it gives states very broad freedoms as to what abortion policies to adopt,” Baum says.
“And so, states that are using Dobbs as a basis for basically prohibiting abortion are complying. States that decide they’re going to protect abortion even if the Supreme Court doesn’t, they’re complying also. And so states can often do a great deal that they want to do within the bounds of a Supreme Court decision.”