With the Conservative-dominated Supreme Court’s recent gutting of Section 2 of the Voting Rights Act, which will inevitably lead to southern states drawing new Congressional districts to significantly dilute minority voters voting preferences, and probably the eventual loss of several Black Representatives’ seats in the House of Representatives, should this latest undemocratic and potentially racially discriminatory overreach by the Court be met with a movement for Supreme Court reform?
The Supreme Court wields immense power to invalidate laws
enacted by our elected representatives and signed by the President. Its members
are appointed for life terms, and new appointments are currently made only
because of a Justice’s retirement or death. Justice Clarence Thomas, for one, has
been seated on the court for more than 34 years. “For the first 180 years of
U.S. history, justices served an average of approximately 15 years. But in the
1970s, the average tenure began to balloon. In recent years, justices have
served an average of 26 years,” according to the Brennan Center for Justice.
Indeed, it is entirely arbitrary which political party’s
President will have the opportunity to nominate a new justice, and as in the
case of President Obama’s nomination of Merrick Garland, opposing party control
of the Senate can also prevent a nominated justice from attaining a seat on the
Supreme Court. That is, the current composition of the Supreme Court, with its
6-member conservative majority, is the product of an entirely arbitrary and
undemocratic system for deciding the court’s members.
“President Donald Trump appointed three justices in four
years, whereas Presidents Bill Clinton, George W. Bush, and Barack Obama each
appointed two justices in eight years,” and President Joe Biden appointed one
justice in four years, “This wide variation, as well as its impact on the development of American law, is impossible to square with principles ofdemocratic legitimacy,” argues the Brennan Center for Justice.
The Brennan Center for Justice is advocating for Supreme
Court reform – namely, to limit Supreme Court Justices to 18-year terms and to
give all Presidents two Supreme Court Justice appointments during a 4-year
term.
Its reform plan would have Supreme Court justices become
senior justices after their 18-years on the court, where they would still
retain certain judicial duties, but not hear current cases before the court
unless there was a recusal or vacancy on the court. This way, Supreme Court
justices would retain life tenure. Congress has the constitutional power to
make such a change.
Supreme Court term limits are supported by a significant majority of Americans, according to polling done between 2020 and 2023 by various pollsters showing between 62% to 75% of those polled supporting term limits.
The public also has a diminished and partisan view of the
Supreme Court. According to a 2025 public opinion poll by Gallup, 52 percent of
respondents did not approve of how the Supreme Court is handling its job, and
43 percent feel that the court is too conservative, 17 percent said it’s too
liberal, and 36 percent said the court is ‘about right’.
The Supreme Court’s recent ruling on the Voting Rights Acts
begs the question whether the court is playing too partisan a role as the third
branch of government, for the result of its holding will impact Congressional
redistricting and the balance of power in Congress. Also, its ruling casts a
blind eye to the historical offenses to American liberty and rights of blacks
living under Jim Crow in the South, and the racist legacy of that history which
likely prevails to some extent in southern states even today.
The Supreme Court majority, in its opinion in Louisiana v. Callais, writes: “[I]n large part because of the Voting Rights Act[,] . . .
our Nation has made great strides” in eliminating racial discrimination in
voting. Shelby County, 570 U. S., at 548–549. And if, as a result of this
progress, it is hard to find pertinent evidence relating to intentional
present-day voting discrimination, that is cause for celebration.
Racial discrimination in voting – if you mean going to your polling location and casting a ballot – may be minute or non-existent today, but
the potential for racial discrimination in congressional redistricting is a whole
different matter, and hiding that under the guise of political gerrymandering when
most blacks vote for the Democratic Party would amount to racist gerrymandering
by other means.
The Supreme Court’s recent holding in Louisiana v. Callais
essentially invalidates Section 2 of the Voting Rights Act, whose
text is below, emphasis added:
A violation of
subsection (a) is established if, based on the totality of circumstances, it is
shown that the political processes leading to nomination or election in the
State or political subdivision are not equally open to participation by members
of a class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to participate in
the political process and to elect representatives of their choice. The
extent to which members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may be considered:
Provided, That nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the population.
Liberal Supreme Court Justice Elena Kagan dissented from the
Court’s opinion, joined by justices Sonia Sotomayor and Ketanji Brown Jackson, an
excerpt of which follows, regarding Section 2 as it applies to redistricting:
The last, and surely the hardest, for just three Terms ago
the Court upheld a vote-dilution challenge to a districting map in a case much
like this one—preserving Section 2 as a tool to prevent racially discriminatory
redistricting. See Allen, 599 U. S., at 17. “[W]e decline to adopt,” the Court
said then, “an interpretation of §2 that would revise and reformulate” our “§2
jurisprudence [of] nearly forty years.” Id., at 26. Nothing has changed in the
three years since. Yet today, the majority does “revise and reformulate” . . .
and destroy. It avails itself again of the tools used before to dismantle the
Act: untenable readings of statutory text, made-up and impossible-to-meet
evidentiary requirements, disregard for precedent, and disdain for
congressional judgment. And in that way it greenlights redistricting plans that
will disable minority communities—in Louisiana and across the Nation—from
electing, as majority communities can, “representatives of their
choice.Ӥ10301(b). What if the districts in which minority citizens exercise
voting power are sliced up, and the pieces appended to districts in which they
can play no meaningful role? The majority tells us that the inability to make
out a Section 2 claim will just be a mark of the Nation’s progress, and
therefore “cause for celebration.” Ante, at 31.
I dissent. The Voting Rights Act is—or, now more accurately,
was—“one of the most consequential, efficacious, and amply justified exercises
of federal legislative power in our Nation’s history.” Shelby County, 570 U.
S., at 562 (Ginsburg, J., dissenting). It was born of the literal blood of
Union soldiers and civil rights marchers. It ushered in awe-inspiring change,
bringing this Nation closer to fulfilling the ideals of democracy and racial
equality. And it has been repeatedly, and overwhelmingly, reauthorized by the
people’s representatives in Congress. Only they have the right to say it is no
longer needed—not the Members of this Court. I dissent, then, from this latest
chapter in the majority’s now-completed demolition of the Voting Rights Act.
The idea of Supreme Court reform has attained new heights. President
Biden established in his presidential term the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts
on the Court and the Court reform debate.
President Biden also authored an OpEd that appeared in the
Washington Post where he called for term limits for Supreme Court justices.
The Supreme Court exerts tremendous power as the third branch
of government through its power of judicial review but its transformation into
a hyper-conservative court is unreflective of the politics of the American
people and is solely a product of an undemocratic system of
life tenure and totally arbitrary court appointments. The current court’s recent willingness to overrule
legal precedents in a variety of cases reveals its partisan, activist character
and begs for reform. It’s time to reform the Supreme Court and make it more representative
of our democracy.
David Fine
Freelance Writer
Related articles
The Supreme Court is Dangerously Broken. Here’s How to Fix It, Time magazine
John Roberts Believes in an America That Doesn’t Exist NY Times opinion
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