Democrats are aiming their fire at the Supreme Court after this week’s monumental ruling that granted former President Trump broad immunity from criminal prosecution, hoping that a messaging blitz focused on the bench could turbocharge campaigns up and down the ballot in the lead-up to the November elections.
The Democrats are floating a host of reform proposals, some more aggressive than others, that they’re hoping to adopt if voters deliver them the House majority at the polls. The list includes efforts to apply term limits to Supreme Court justices; establish a formal — and enforceable — code of ethics by which the justices must abide; increase the number of justices on the court; and grant Congress greater oversight powers over their conduct.
Some lawmakers would go a long step further, calling for the impeachment of several conservative justices who have declined to recuse themselves in cases where they appear to have conflicts of interest.
None of the proposals are likely to become law, given the growing expectations that Democrats will lose control of the Senate, and perhaps the White House, next year.
But House Democrats are promoting the reforms nonetheless in an effort to animate those voters concerned that the Supreme Court has become too activist — and too unaccountable — since conservatives gained a 6-3 majority under Trump.
Highlighting that strategy, the Biden administration this week launched a seven-figure ad buy to call attention to the Supreme Court’s presidential immunity decision, Axios reported Wednesday. And congressional Democrats are also hoping the public backlash to a host of conservative rulings — not least the 2022 decision to eliminate constitutional abortion rights — will bring voters to their side.
“They've unleashed fury all across America, and there's nothing that they can do to stop it,” House Minority Leader Hakeem Jeffries (D-N.Y.) said last week.
Here are five reform ideas Democrats are pushing heading into November’s elections.
Perhaps the least controversial of the proposals is the notion that Congress should create some new oversight authority over the court — a change that’s been endorsed by party leaders like Jeffries.
Under current law, high court justices largely police themselves when it comes to issues of ethics, including the decision to recuse themselves from cases when there are conflicts of interest, or even the appearance of such.
Democrats have been up in arms since reports emerged that Justice Clarence Thomas’s wife had been a prominent player in Trump’s efforts to overturn the 2020 election results, and that flags associated with conservative political movements — including Trump’s “Stop the Steal” campaign — flew at two of Justice Samuel Alito’s homes.
Both justices have declined calls to recuse themselves from cases related to the Jan. 6, 2021, attack on the Capitol, including the recent presidential immunity case.
Democrats have several bills designed to apply new layers of scrutiny to the court.
Some would empower Congress with new oversight powers directly. Others would establish an investigative branch within the Supreme Court to explore allegations of unethical conduct and report the findings to Congress.
It’s unclear which strategy Democratic leaders would pursue if they seize control of the chamber, but they’re vowing that action would be swift.
“At minimum, in our system of checks and balances with separate and co-equal branches of government, it is Congress's responsibility to engage in responsible oversight over the judicial branch,” Jeffries said earlier in the year. “And I certainly think that the first opportunity we have to do just that, we will not shy away from oversight, but we will engage in it.”
Another proposal gaining traction in the House Democratic Caucus is the creation of a formal code of ethics to which the justices would be bound. That idea is hardly new, but it picked up steam in the wake of reports that Thomas has accepted millions of dollars in travel benefits and other gifts from a conservative billionaire, Harlan Crow, who has a long history of donating to Republican causes.
Thomas initially did not report the gifts on financial disclosure forms as required — an omission he called an inadvertent oversight.
Under pressure — and with public confidence in the Supreme Court waning — the court in November adopted a first-ever Code of Conduct designed to clarify appropriate comportment and help salvage the sinking reputation of the institution. A key provision of the code says the justices should "avoid impropriety and the appearance of impropriety in all activities.”
Yet critics said the effort fell short of the reforms needed to rein in behaviors they deem corrupt, not least because the code includes no enforcement mechanism. In response, Democrats on the House Judiciary Committee formed a task force to promote a series of specific court reforms, including a bill — the Supreme Court Ethics, Transparency and Recusal Act — which adopts an ethics code with an enforcement instrument.
"We have a Supreme Court that is out of control, and is pretty much motivated by power and politics,” Rep. Hank Johnson (D-Ga.), who spearheaded the task force and sponsored the ethics bill, said Wednesday by phone. “And that needs to change.”
Once confirmed by the Senate, Supreme Court justices serve open-ended terms that can — and frequently do — last a lifetime. Many Democrats say that arrangement promotes a system in which justices become out of touch with changing public sentiments and unaccountable for explicit misconduct. They want to cap the justices’ tenure — one proposal, sponsored by Johnson, would limit terms to 18 years — to ensure a quicker turnover of both justices and the ideologies they espouse.
Rep. Glenn Ivey (D-Md.), a former professor at the University of Maryland School of Law and now a member of the Judiciary Committee, noted that judges in his home state are subject to term limits and mandatory retirement at age 70. In the wake of the court’s immunity decision, he said, Congress should consider similar restrictions on Supreme Court justices.
“I'll admit that I really hadn't been entertaining something as dramatic as term limits or something along those lines. But given where they appear to be going — and the removal of guidelines, not only for themselves, but now for the president — I think we might have to get involved here at a different level,” Ivey said.
“There are variations of what those could be,” he continued. “But to the extent the court is now sort of the same kind of polarized institution that the political branches are, I think it's probably something that we really ought to do.”
Liberal Democrats for years have pushed to expand the number of justices on the Supreme Court, an effort that took center stage after the bench overturned Roe v. Wade and one that is getting another jolt of energy following the presidential immunity decision.
“I support expanding the republican supreme court because it is the surest way to finally balance this corrupt rightwing body. I urge my colleagues to support expansion,” Rep. Bill Pascrell (D-N.J.) wrote on social platform X.
Two other progressives — Johnson and Cori Bush (D-Mo.) — cited their legislation, the Judiciary Act, when reacting to Monday’s decision.
The legislation, which is backed by a number of liberals in both chambers, would add four seats to the Supreme Court, making the bench a body of 13 justices.
Johnson said the additional justices would help balance out the court’s conservative lean and bring it back in closer alignment with contemporary public sentiment.
“At this point the court has been packed with right-wing extremists … and they're taking our country in a direction that is against the common good. It's against our democracy. And it's a display of raw power,” Johnson told The Hill in an interview. “What they are doing is shifting power to themselves, and to wealthy corporations and to the executive branch. That's disrupting the delicate system of checks and balances upon which our democracy depends.”
“And so we cannot sit back and allow that to happen,” he continued. “These justices have lifetime tenure. ... [Some have another 10-20 years on the bench]. And so the quickest solution is to dilute the authority of these right-wing, power-hungry ideological extremists. We can do that by adding justices.”
A less likely — but flashier — path Democrats could pursue to push back on the Supreme Court is impeaching the conservative justices on the bench, an idea that several liberals are advocating for.
Last month, Rep. Rashida Tlaib (D-Mich.) went to the House floor and urged the impeachment of both Thomas and Alito. More recently, Rep. Alexandria Ocasio-Cortez (D-N.Y.) drew headlines when — shortly after the high court published its presidential immunity decision — she said she plans to file articles of impeachment when the House returns to session next week.
“The Supreme Court has become consumed by a corruption crisis beyond its control,” Ocasio-Cortez said in announcing her plans. “It is up to Congress to defend our nation from this authoritarian capture.”
Ocasio-Cortez, to be sure, was vague on details — she did not say which justices she plans to target, or note if she intends to force a vote on the matter — but the mere mention of the idea marks a dramatic escalation of the Democrats’ scrutiny of conservatives on the bench.
Ocasio-Cortez’s office did not respond to repeated requests for more information.
The congresswoman could go after all six conservative justices, three of whom were nominated by Trump. Or, she could just try to oust Thomas and Alito for their ethics concerns.
“These corrupt justices continue to strip us of our rights while taking bribes from billionaires with business before the Court,” Tlaib, who also supports term limits, a binding code of ethics and a court expansion, said this week in an email. “We need urgent action in Congress to hold these extremists accountable.”
Not all Democrats, however, are jumping on board.
Ivey said both Thomas and Alito should have recused themselves in the immunity case — the Thomas connections in particular “are textbook conflicts of interest,” he said — but also stopped short of urging impeachment.
“I think that's a bridge too far,” Ivey said.
There’s very little precedent for such a drastic step. Former Associate Supreme Court Justice Samuel Chase was impeached in 1805, making him the only member of the bench to receive the penalty. The Senate, however, acquitted him of charges.
