If a part of the national government has the confidence of only one out of every four Americans, has the time come to change it – in big ways or small?  The U.S. Supreme Court now faces that dismal rank in the latest poll, and the demand for change might be as high as at any time in the almost 90 years since President Franklin Roosevelt tried – unsuccessfully – to “pack the Court” by adding six seats.

The daunting reality today is that the boldest change that might be made, even if the people insist on it, is the hardest to do. That would be to amend the Constitution to take away the Court’s power to decide what  it means.  The Constitution did not give the Court that authority in 1789; it simply claimed it in 1803 and has never reconsidered.

The current Court’s most criticized rulings are all based on interpretations of the Constitution and are changeable only by constitutional amendments.  Here are some of those rulings or trends:

·        Vastly increasing the power of the Presidency, including creating a sweeping form of immunity from criminal laws and giving the President almost unchecked personal control over the vast Executive Branch and broad power to start wars.

·        Taking away from states the power to exclude a controversial candidate from running for President – even one who has engaged in insurrection against the government.

·        Taking away a woman’s constitutional right to choose to have an abortion.

·        Severely restricting the right to vote, by relying on the Constitution itself to narrow federal laws that protect that right.

·        Making it exceedingly difficult for the government to promote racial equality through “affirmative action” policies and programs, because they are based too much on race.

·        Removing the power of Congress and state legislatures to end “partisan gerrymandering,” the practice of drawing election maps that give one political party a distinct advantage.

·        Bringing religion more fully into the public square and giving faith-based organizations a generous share of public benefits, lowering significantly the constitutional wall separating religion and government.

America’s constitutional history shows that it takes a broad wave of people power to get the Constitution amended.  That last happened in 1992, and it has happened only 27 times since 1789.  A further problem is that the only real alternative to the Court’s power to define constitutional meaning is to give Congress and the President each a share of that power–very likely an invitation to chaos.

Short of amending the Constitution, several other proposals are currently floating around.  Here are the ones that appear to be most widely discussed, arranged in the order of most significant to least:

1.      Increase the size of the Court’s membership, to offset the power of the current conservative majority of six Justices.  One suggestion is to increase the current nine to 15.  (Ideally, it should be an uneven number to allow for a majority to prevail, even if narrowly.)  The number of seats is set by Congress; it has been as few as five and as many as 10.  It was set at nine in 1869, and has not been changed since.

2.      Impose term limits – say, 18 years – on the time a Justice may serve on the Court, then either step aside or become a kind of alternate Justice to fill in when needed on the Supreme Court or a lower federal court.  There is a long-standing constitutional question over term limits for the Justices, because the Constitution guarantees them that they can continue to serve “during good behavior” – that is, life tenure.  The deepest doubt is whether Congress can simply order a Justice to step aside after a set number of years on the bench.

3.      Take away some of the Court’s power to decide specific categories of cases.  The Constitution says that Congress has some power to impose such limits, but how much may depend upon whether the Court would strike down any such measure as an unconstitutional interference with its independence, which the Court vigorously defends.

4.      Pass a law to require seven votes (or more) for the Court to declare a federal or state law unconstitutional.  The Court almost certainly would nullify or perhaps even ignore such a law.

5.      Compel the Court, whenever it acts, to explain why it has done so.  This is suggested as a way to curb the Court’s handling of “emergency” matters on what even the Justices call their “shadow docket.”  The current Court has ruled on some highly significant issues using that docket, providing no reasons for its orders but then treating them as if they had genuinely set a precedent for future cases.  Congress could attempt to limit this practice, but the Court very likely would resist.

6.      Empower Congress to push back with fast-tracked new legislation when the Court interprets a federal law in a way that Congress argues is not what it intended.  Congress clearly has the power to adopt such a rapid response mode of legislating, if it has the political will to do so.  (Under the Constitution, Congress cannot overturn or change a constitutional decision by the Court except by putting forth a constitutional amendment.  Throughout history, Congress has done that seven times, most recently in1971 with the 26th Amendment, which lowered the voting age to 18.)

7.      Adopt a binding “code of judicial ethics,” with strong enforcement power for misconduct.  The Court has written a code of its own, but enforcement is not assured.  There is a serious constitutional question about Congress’s power to punish judges’ misconduct, except by formal impeachment by the House and conviction by the Senate.  Impeachment of a Justice has been attempted only once, in 1804, but that failed.

8.       In hopes of compelling the Court to do more of its work in the open, to assure more transparency, order the Court to permit cameras in the courtroom during all hearings and other public events.  If tried, this may well be resisted by the Court; it is as jealous of its own methods as Congress is of its procedures for writing laws or holding hearings.

Let us now assume that, at some point in the predictable future, Congress attempts to adopt some of those potential changes in the Supreme Court, or reaches beyond what it can do by passing new laws and opts to try to amend the Constitution to clear the way for measures that might violate the Constitution.

The simple reality is that the chances are not very good for such measures, singly or together, to succeed.

The problem is the tyranny of numbers – that is, what it takes to amend the Constitution, and what it takes to pass any legislation that is immersed in serious controversy.

Consider, first, the constitutional math for amending the basic document:

·        It would take the votes of two-thirds of each house of Congress (290 in the House if all members vote, 67 in the Senate if all vote) to propose a constitutional amendment, and the approval of three-fourths of the states (38) to ratify it.  The last time that happened was 34 years ago.

·        Or, if two thirds of the state legislatures (34) can agree on an amendment they want, they can ask Congress to put it up for ratification.  That has never happened.

·        Congress can choose to submit a proposed amendment for ratification, either by state legislatures or by state conventions (requiring three-fourths approval in either).  Only once has an amendment been ratified by state conventions (the 21st, in 1933, repealing the 18th Amendment’s prohibition on intoxicating liquor).

Those requirements are now considered to be so onerous that some serious scholars have begun arguing that it may be time to call a new constitutional convention, to start all over.  That is an idea that might result in chaos, if tried in America’s current polarized political atmosphere.

What, then, are the prospects for new legislation to compel change at the Court?  Because of the effects of partisan gerrymander, and the tilt of the amendment process that gives smaller states power out of proportion to their populations, both chambers of Congress are now almost always very closely divided, making consensus hard to achieve, and there is not much chance for that to change significantly.  

Is there, then, no hope?  Michael Waldman, the president of the liberal Brennan Center for Justice, recently wrote on this topic: “Throughout history, reform follows scandal and crisis – often, but not always.  If we act, from today’s clashes can come a time of renewal and democratic rebirth.”