The United States Supreme Court has, at best, a checkered past. Established in 1789 with the first bill introduced in the United States Senate — the Judiciary Act — the Supreme Court was initially composed of a chief justice and five associate justices. By 1869, the size had expanded to nine justices and has remained stagnant to the present day.
Keep in mind, the population of the U.S. was 38 million then and is now 340 million. The current number of justices, given our current population, alone is a problem. But I am not advocating for a mere expansion or “packing of the court.” That does not go far enough. I propose something slightly more radical: We must completely rethink our conception of the Supreme Court and seriously amend the rules regarding the highest court in the land.
The Supreme Court, in its conception, was meant to act as a check on the other branches of government. But in the Founding Fathers’ attempt to bolster the Court’s influence, they created an institution that is fundamentally totalitarian. The justices, despite their existing official methods for their removal, virtually answer to no one. In fact, a Supreme Court Justice has never been removed from office in the 236-year history of the Court.
In addition, there are no term limits for justices. They never have to be reconfirmed and are never mandated to retire. In fact, only 39 of the 115 justices who have served on the Supreme Court have ever retired. An institution that allows for lifetime terms gives those justices — and those who appoint them — an exorbitant amount of power, kicking the door wide open for the abuse of that system.
This is a problem plaguing justices on all sides of the aisle. Ruth Bader Ginsburg faced calls to retire in 2013 and 2014 when Barack Obama was president and Democrats controlled the Senate because she was 80 years old. The line of reasoning was that in the scenario, a switch to the Senate or presidency occurred before she retired, a liberal justice could be guaranteed a spot on the Court. Otherwise, there was a risk that a conservative justice would replace her. In her choice not to retire, that exact fear was realized with her death in 2020 at 87, which led to Donald Trump’s appointment and eventual confirmation of Amy Coney Barrett, a conservative justice.
Why would one ever retire from a job in which they enjoy immense power, make hundreds of thousands of dollars, notwithstanding book deals, other sources of income and enjoy generous gifts from Harlan Crow? It’s no wonder Clarence Thomas is still writing opinions.
Still, the problems of the Court are not simply related to its modern composition. The Court has long worked against the interests of the American people and, despite a few landmark cases here and there, has stood largely in opposition to progress.
It is often federal or district courts, not the Supreme Court, that work to defend the Constitution. These institutions are more effective and more democratic than the Supreme Court, which is why a horizontal expansion of the federal judiciary is necessary. It’s time to do away with the “One Court to Rule Them All” system in place.
The Supreme Court does not exist as an independent, honorable institution. It is a way for presidents to influence policy in the U.S. long past their time as elected officials, in a disproportionate abuse of power. The Supreme Court places nine people into excessive and dangerous levels of power for their entire lives.
And, these people generally aren’t great. Currently, on the Supreme Court sit two men who have been credibly accused of sexual misconduct, a man who has come under constant scrutiny for taking luxury vacations funded by a billionaire Republican donor and a man who has repeatedly brandished white supremacist symbols at his homes (yes, plural). These justices are Brett Kavanaugh, Clarence Thomas, Clarence Thomas again and Samuel Alito, respectively.
So then, what are the steps we can take to improve the Supreme Court?
First, the Supreme Court must adopt a strict and binding code of ethics. Currently, the Court only adopted a code of ethics in 2023 (following backlash regarding Harlan Crow’s and Clarence Thomas’ relationship), which is largely symbolic and not at all legally binding.
Next, an expansion of the Court is long overdue. A court that was deemed representative of the population in 1869 cannot seriously be considered apt today. I propose a size of 15 — but this is just a suggestion, and the actual number is less important than ensuring that the Court expands in general. This will increase the number of individuals weighing in on serious cases and better represent the growing U.S. population.
Lastly, and perhaps most importantly, we must set terms for Supreme Court justices. The time of justices abusing their power by staying on the Court for excessive periods of time has to end. If Supreme Court justices were subjected to re-confirmation every eight years, it would depoliticize the Court and allow for additional oversight of the Court by the other branches of government.
Along with improving the Court, we must advocate for an expansion of the federal judicial branch (currently there are only 1,770 federal judgeships to represent a population of over 340 million). It is worth further examination whether these judges should be allowed life terms, but that is a separate consideration. Lower courts must be empowered, and we should seek to continue to keep these courts, along with the Supreme Court, fair, free and independent.
We can do better than our current system when conceptualizing the supposed emblem of law, justice and order in the United States. For our own sake, we must do better.
Alex Benach PO ’28 is from Washington, D.C. and is looking forward to a new constitutional convention.
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