Those rumors have since subsided. But we should not be fooled by that burst of activity. Congress is otherwise asleep at the wheel when it comes to its constitutional responsibility to serve as a check on the Supreme Court's power.
Congress has options here, sensible ways to return the Court to its proper place in our system of government. It has done so many times before. Congress has modified justices’ duties, created recusal standards, and even changed the Court’s size and jurisdiction. At a time when the rule of law is being tested like never before by an especially powerful executive branch, the public needs a Supreme Court it can trust. Americans' confidence in our highest court is polling at record lows, which could have disastrous implications for the country. The Court needs the public to believe in its legitimacy for its rulings to matter.
A widely popular option is to enact term limits for Supreme Court justices. Average tenures have grown exponentially in recent decades, giving justices immense power to shape the law and politics for generations. A current justice could hold office for as many as nine presidential terms. This clashes with an American value: Nobody should hold too much power for too long. Congress should pass a law requiring 18-year term limits for justices, after which justices would assume senior status, allowing them to fulfill their constitutionally guaranteed tenures with modified duties, a common practice among lower-court judges.
When Congress determines that the Court has misapplied or undermined federal law, it must act by creating an expedited process in the Senate to respond. Akin to the Congressional Review Act, which gives Congress a fast path to respond to federal agency regulations, this process could allow the Senate to pass laws responding to rulings by a simple majority within a certain number of days. This would ensure that voters, not unelected justices, have the final say.
The Brennan Center estimates that over the last year, the Trump Administration has asked the Court to use its emergency docket to overturn lower court decisions an unprecedented 34 times—of those requests, the Court has issued 25 decisions and ruled in the administration’s favor 80% of the time. In many cases, it has been difficult to understand what the “emergency” actually was. To us, Trump’s inability to dismantle an agency or freeze scientific research grants hardly seems like an emergency.
Finally, while new Supreme Court confirmation hearings now appear less imminent, any reform package must address the dysfunction of the confirmation process. Since Senator Mitch McConnell blocked President Obama’s Supreme Court nominee, claiming it was too close to an election, only to push through Justice Amy Coney Barrett after early voting had already begun in 2020, confirmations have increasingly turned into toxic displays of partisan gamesmanship. But the nomination process shouldn’t be at the whim of the party in power. Congress should enact a mechanism to fast-track nominees after a certain number of days of inaction, ensuring every nominee receives fair consideration.
Congress has the power to ensure that the Court plays its proper role and to restore balance to our system of checks and balances. For the sake of our democracy, it must act on it.
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