Meet the man who’s attempting to repair the Supreme Court
By Michael Jones
I remember a time in the not-too-distant past when the average American heard about the Supreme Court in just a few instances—throughout oral arguments of high-profile cases each fall, when the justices released their decisions the following summer, and during confirmation hearings to fill a vacancy.
But since the Dobbs opinion overturning Roe v. Wade was leaked two years ago, the Court has been under relentless and intense scrutiny.
Last April, ProPublica, a New York City-based nonprofit investigative journalism newsroom, published a series of reports that Justice Clarence Thomas accepted undisclosed luxury trips from Harlan Crow—a billionaire real estate investor who also bought and renovated a house where Thomas’s mother lives and paid for private school tuition for the justice’s grandnephew.
Months later, ProPublica reported that Justice Samuel Alito also took undisclosed luxury trips he didn’t pay for. In recent weeks, The New York Times published a report revealing an upside-down flag, a symbol of the so-called “Stop the Steal” movement that led to the Jan. 6 insurrection, was flown at Alito’s home in Virginia in 2021. Two days ago, the Times revealed that a flag that has been associated with insurrectionists was flown outside Alito’s New Jersey residence last summer.
In response to these scandals and the broader crisis of public confidence in the federal judiciary, Rep. Hank Johnson (D-Ga.) led the launch of the Court Reform Now task force earlier this month to restore balance and accountability to the Court.
“Not everyone in Congress knows this is a five-alarm situation,” Johnson, the top Democrat on the House Judiciary Committee overseeing US federal courts, said earlier this month. “We need to educate other members and congressional staffers about how we got here, what the scope of the problem is, and what steps we can take to save our democracy.”
The task force—co-chaired by Democratic Reps. Adam Schiff (Calif.), Jamie Raskin (Md.), Madeleine Dean (Pa.), and Jasmine Crockett (Texas)— is focused on three legislative priorities: Expanding the Supreme Court from nine to 13 justices, instituting 18-year term limits for justices and imposing a binding and enforceable code of conduct for the Supreme Court.
It will hold briefings and brown bag lunches to discuss how the high court has been corrupted and how to reverse course.
“To fix a problem you have to demystify it,” Johnson said. “And that’s what we hope to do.”
While it’s unlikely any meaningful legislation will be advanced in the near future, it’s notable how the movement to reform the Court has accelerated in recent years at the grassroots level. It has attracted the support of influential congressional Democrats and provided organizers with a template for transforming their political power into legislative progress on other issues they value.
Johnson told me the task force is currently focused on growing its House membership while the Senate pursues its own path to reform.
“I think there may be support [of the task force] in the Senate,” he said. “Of course, senators kind of like to do things on their own and there’s an institutional dynamic, which I don’t know if we’ll be able to overcome the traditions that go so far back, particularly in the Senate. But anything is possible.”
The Senate Judiciary has held hearings on Supreme Court ethics and subpoenaed Leonard Leo and Harlan Crow, the benefactors at the center of the Alito and Thomas scandals.
“The Judiciary Committee under Sen. [Dick] Durbin (D-Ill.) is definitely on the trail,” Johnson said. “I think that it takes time for legislation to pass probably more of a lengthy time in the Senate than in the House.”
Congressional Democrats have called on Alito and Thomas to recuse themselves from cases that present perceived conflicts of interest. Some conservative lawmakers have questioned the justices’ judgment, but most have rejected calls for reform and instead encouraged Chief Justice John Roberts to course-correct his own institution.
Unsurprisingly, Senate Minority Leader Mitch McConnell (R-Ky.) stopped short of calling on Alito to recuse himself from the Jan. 6 cases.
“It seems to me there are just nonstop attacks on the Supreme Court week after week after week,” he told reporters this week. “We need to leave the Supreme Court alone, protect them from people who went into their neighborhoods and tried to do them harm and look out for the Supreme Court—that’s part of the job of the [Biden] administration.”
McConnell’s hands-off approach to the courts is rich considering his role as the central legislative architect in the conservative movement’s takeover of the federal judiciary.
During the Trump administration, the longest-serving Senate party leader in US history confirmed a record number of federal appeals court judges during a president’s first two years. And he lowered the threshold for Supreme Court nominations from 60 votes to a simple majority, an invocation of what’s known inside Washington as the “nuclear option.” (McConnell’s predecessor, the late Harry Reid of Nevada, previously eliminated the filibuster for all other presidential nominations.)
In 2016, McConnell blocked the Senate from considering the nomination of Merrick Garland, then a DC appellate judge, to replace Justice Antonin Scalia following his death.
This decision, McConnell said, was the most consequential of his career.
“One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy,” McConnell would later say during a speech in his home state.
Justice Neil Gorsuch was confirmed when Trump took office the next year in the first of three confirmations McConnell would oversee to build the current conservative Supreme Court supermajority.
“The result has been severe loss of public trust and confidence in the court as the guardian of the rule of law, which has produced an extreme right-wing Court that has been handpicked by Leonard Leo and the Federalist Society to establish by judicial fiat what the far right cannot establish and accomplish legislatively,” Johnson said. “Judicial activism and legislating from the bench have run amok and Congress must act.”
No Republicans have signed on to any of the three bills on which the task force is pursuing legislative action.
House Minority Leader Hakeem Jeffries (D-N.Y.), who served on the Judiciary Committee during his ascent to the top of the Democratic Caucus, said that the Supreme Court has undermined freedom in many instances—including on reproductive health care—and that the documented corrupt behavior hasn’t led to consequences for justices like Alito and Thomas.
“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,” he told reporters last week. “And I certainly think the first opportunity we have to do just that, we will not shy away from oversight but we will engage in it.”
What that oversight looks like remains to be seen until Democrats are back in the majority.
“We’ve got to change leadership so that we can get the [committee] gavels and we can control the flow so that we can bring measures like this to the floor,” Johnson said. “And hopefully we can retain the Senate next election and the Senate can press forward.”
When that time comes, Johnson told me he would push for comprehensive reforms while respecting the reality that the task force may have to accept incremental changes depending on the makeup of the next Congress.
“I think it’s more likely that they will pass one at a time on their own merits as opposed to being in an omnibus type of a bill,” Johnson said. “I’ve learned that you take what you can get as it comes and keep working towards your ultimate goal.”
Michael Jones is an independent Capitol Hill correspondent and contributor for COURIER. He is the author of Once Upon a Hill, a newsletter about Congressional politics.
