Time for a Change? An analysis on the growing need for long-overdue SCOTUS reforms

Writer: Lily Kurtz

Editors: Kaleigh Erler, Andrew Lehnhardt

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I. Introduction

There is a growing issue with polarization on a number of issues in the United States, some of the most notable include debates on birthright citizenship, voting rights, and presidential authority, which are all being contested in the Supreme Court. Throughout American history the government has expanded executive powers and resized the legislature, yet little reform has touched the Supreme Court. In recent years, public support for the supreme court has plummeted with a public disapproval rating of 52%.₁ This stems from perceptions that justices vote along ideological lines rather than on constitutional grounds, and from ethics concerns that have gone largely unaddressed. 

This paper works to evaluate suggested reforms to the Supreme Court based on their effectiveness, constitutional implications, and public support. Constitutionality and public support appear to be two of the biggest things that are holding back Supreme Court reforms from already taking place. While there are some issues that come into play when abiding by the constitution, there are often loopholes that have been worked into proposed legislation. Critics often worry about the effectiveness of Court reforms, especially for solutions like tenure, which has the possibility of leading to further corrupt practices among the justices. Despite the many challenges and criticism that comes with Supreme Court reform, it is still crucial to discuss possible legislation or methods to fix the current issues. In order to work in favor of the American people, it is crucial that the Supreme Court goes under a series of reforms that include setting up term limits, improving the confirmation process, and ending abuses of the “shadow docket.”

II. Altering the Confirmation Process

One area eroding public trust is the confirmation process itself. The current process for confirmation begins by the President officially selecting and nominating a candidate. The nomination is referred to the Senate Judiciary Committee where they conduct an investigation of the nominee’s previous rulings, hold public hearings to examine their legal philosophy, and a vote is conducted to determine whether they are in favor of advancing the nomination. Finally, the full Senate debates and votes, a simple majority confirms, and the President signs the commission. Currently, critics argue the process gives ordinary citizens no meaningful voice in who joins the Court.₂

One proposed solution is holding a popular election for Supreme Court nominees. In his article “Electing the Supreme Court: Breaking Down Partisanship and Improving Accountability over Our Judiciary,” Signe Janoska-Bedi proposes this very idea by highlighting the possibility of a popular referendum in order to improve democratic participation into the Supreme Court.₃ A major benefit to the idea of a judicial referendum is that there are no constitutional restraints for its implementation. Inscribed within the constitution, U.S. Const. Art. III, § 2, cl. 2. Appointments of Justices to the Supreme Court states that “he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States”.₄ 

III. Uncovering the "Shadow Docket"

Another feature of the Supreme Court that has caused skepticism in recent years has been the use of the shadow docket. More formally known as the emergency docket, this is a tool used by the Supreme Court on emergency applications, procedural motions, and summary reversals without the full briefing or oral arguments. Critics argue the shadow docket fast-tracks rulings with little transparency, accountability, or written reasoning. The use of the shadow docket has also increased throughout the years and is perceived to favor certain political outcomes, ultimately undermining the Court’s legitimacy.₅ In his essay “Fixing the Supreme Court Through its Docket,” Stephen L. Vladeck discusses how not only does the use of the shadow docket lead to the sorting of justices along ideological lines, it also has taken up most of their practice. According to Vladeck, “during October Term 2024, the Supreme Court did not hear a single direct appeal from a state criminal conviction”₆ whereas roughly a decade before that “it was averaging five to seven such cases per year”.₆ 

In order to weaken this controversial tool, a proposed solution is Supreme Court docket reform. One way to reform this corrupt practice is through legislation requiring the Court to disclose vote counts and to apply clear evidentiary standards. A substantial issue with the Shadow Docket is the lack of guidelines that determine whether a case is an emergency. In order to solve this, parties should be required to prove "irreparable harm” which is not as extensive right now.₇ The issue with pushing reforms to the docket is that congress is deeply divided on the issue of Supreme Court reform, making it hard to pass legislation to improve the court. For example, in the past year house democrats proposed H.R.6816 Shadow Docket Sunlight Act of 2025 ₈ but it has not gone any further than the House Committee on the Judiciary. However, the Court could reform from within by restoring balance to its docket by returning, for instance, to routine review of state criminal convictions.

IV. Setting up Term Limits?

As of right now, when a judge is appointed to the Supreme Court they are set to serve either up until their death or if they take it upon themselves to step down. The United States is a global outlier with many countries having set term limits or an age of retirement for their judges.₉ Even some U.S. states enforce mandatory retirement ages. In South Carolina, judges may vacate their positions by the end of the calendar year in which they turn 72._{10 11} Over the years there has been an increasing bipartisan support for enacting term limits for the Supreme Court with a proposed model of 18-year term limits. This would require moving retired justices to senior status in the lower courts in order to comply with U.S. Const. art. III, § 1, the Good Behavior Clause Doctrine. Article III provides that judges 'shall hold their Offices during good Behavior'. Language proponents interpret this as permitting reassignment to lower courts rather than outright removal._{12 13}

While term limits are generally a popular idea for Supreme Court reform, there has been some push back from legal scholars. In their paper “Do We Really Want Retired U.S. Supreme Court Justices Practicing Law? A Public Policy Critique to U.S. Supreme Court Term Limits,” Michael Broyde and Hayden Hall outline the key issues that could come with term limits. According to their paper, with an 18-year term limit there will be many younger justices who are not ready to retire so it's expected that those justices leaving the bench could be persuaded to turn to other work. This turns into the issue that these former justices will be faced with “monetary pressures and rewards for justices taking the private practice route after their term has ended”.₁₄ Ultimately, if term limits were to be established, there would also need to be a way to prevent potential conflicts of interest. 

V. Conclusion

Given the country's deepening polarization, some form of Supreme Court reform appears increasingly necessary. The Court's influence over American life continues to expand, and when it fails to meet public expectations it erodes its own legitimacy. Despite the obstacles, change can be made to the courts in order to be more ethical and responsive to the public. With a push for more bipartisan legislation on the issue, meaningful reform is within reach.

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1. Gallup. (2025, December) Supreme Court https://news.gallup.com/poll/4732/supreme-court.aspx

2. Annenberg Public Policy Center. (2005, July) The American Public and Lawyers Agree that the Supreme Court Confirmation Process Has Become Increasingly Political https://www.annenbergpublicpolicycenter.org/the-american-public-and-lawyers-agree-that-the-supreme-court-confirmation-process-has-become-increasingly-political/

3. Janoska-Bedi, S. (2019). Electing the Supreme Court: Breaking Down Partisanship and Improving Accountability over Our Judiciary. Harvard Kennedy School Review, 19, 158–160. 

4. U.S. Const. Art. III, § 2, cl. 2

5. Brennan Center For Justice. (2026, April) Supreme Court Shadow Docket Tracker — Challenges to Trump Administration Actions https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration

6. Vladeck, S. I. (2025). Fixing the Supreme Court through Its Docket. Boston University Law Review, 105(5), 1607–1643. 

7. SCOTUSblog. (2025, November) The shadow docket fails again

   https://www.scotusblog.com/2025/11/the-shadow-docket-fails-again/

8. Shadow Docket Sunlight Act, H.R.6816, 119th Cong. (2025)

9. Judiciaries Worldwide. (2026)  Judicial Tenure https://judiciariesworldwide.fjc.gov/judicial-tenure

10. S.C. Const. Art. V, § 15

11. S.C. Assemb. Bill H. 4300, 2025-2026 Reg. Sess. (S.C. 2026) 

12. Brennan Center for Justice. (2026, March) Public Opinion on Term Limits and Other Supreme Court Reforms https://www.brennancenter.org/our-work/analysis-opinion/public-opinion-term-limits-and-other-supreme-court-reforms

13. U.S. Const. Art. III, § 1, cl. 1

14. Broyde, M. J., & Hall, H. H. (2026). Do We Really Want Retired U.S. Supreme Court Justices Practicing Law? A Public Policy Critique to U.S. Supreme Court Term Limits. Akron Law Review, 59(2), 231–295.