From composition to term length, from staggered terms to an enforceable code of ethics.
In 1869, the U.S. population was about 38,000,000, and the union consisted of 37 states.
Also in 1869, Congress set the number of U.S. Supreme Court justices at nine, “one for each of the judicial circuits established in 1866.”
Today, our population is 342,000,000 – almost a 10-fold increase. We have 50 states (a 35% increase), several territories and 13 judicial circuits. But there are still only nine members of the U.S. Supreme Court.
Most of those members (five) were appointed this century by two men who did not win the popular vote when elected president:
- Chief Justice John G. Roberts, Jr., 70 (G.W. Bush)
- Samuel A. Alito, Jr., 75 (G.W. Bush)
- Neil Gorsuch, 58 (Trump)
- Brett Kavanaugh, 60 (Trump)
- Amy Coney Barrett, 53 (Trump)
This Court has struck down legal precedent, overturning Roe v Wade (2022) and approving limits on agency power(2024), for example. These decisions fly in the face of “stare decisis,” which is Latin for “to stand by things decided.” This cornerstone of US jurisprudence “promotes consistency and predictability in the law.” As nominees, the justices swore under oath to uphold precedent on cases where they, instead, backtracked, like Roe v Wade.
Furthermore, the Court is poised to overturn independent agencies (first enacted in 1887) that are accountable to Congress not the President. The Court is considering overturning birthright citizenship, the law since 1868 (14th Amendment) which was upheld by the Court in 1898.
Moreover, the SCOTUS has exonerated in advance criminal acts undertaken by the president assuming they are “official” (2024). Thus the Court has theoretically placed President Donald Trump outside of legal repercussions for murdering almost 100 people in small boats, primarily in the Caribbean.
The Supreme Court is a powerful institution whose decisions affect every day Americans, not just the president.
“To appreciate the reach of today’s Supreme Court, consider just a few questions decided in the 21st century. Who was elected president. How much money can be spent in elections and by whom. Who can marry whom. The scope of the right to bear arms. The legitimacy of affirmative action in universities. The legality of the Affordable Care Act. The unconstitutionality of part of the Voting Rights Act that had protected minority voting rights for decades.”
Therefore, you may not be surprised to learn that most adults under age 50 have an unfavorable opinion of the SCOTUS, according to Pew Research (Sept. 2025). How many of us think the justices are “doing an only fair or poor job” of keeping their own political views out of its decisions? 56%. An excellent or good job? Only 14% of all Americans.
There must be a better way to run and operate our Supreme Court. I’m proposing maximum and staggered terms for justices, a larger Court and a written code of ethics.
First, terms on SCOTUS must not be for life.
Clarence Thomas, 77, has served since 1991: 34 years. This is almost twice as long as the historical median of 18.5 years. The average (mean) tenure was 14.9 years from 1789 through 1970. From 1970 to 2006, the average term jumped to 26.1 years: that’s six and a half presidential terms.
Before assuming the title of chief justice, John Roberts wrote, in 1983:
“The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but [it] is becoming commonplace today. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
One current suggestion is that justices serve a limited number of years in the highest-level appeals. Afterwards, they may have a lifetime appointment as a senior justice.
“Among other things, senior justices would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts. This framework is similar to the existing system of senior judges that has been in place for more than a century and has applied to the justices since 1937.”
Second, presidents should have two predictable appointments per term.
Justice vacancies due to self-retirement and death create considerably distinct presidential imprints on the court. President Donald Trump (2017-2021) appointed three justices in four years. Presidents Bill Clinton (1993-2001), George W. Bush (2001-2009) and Barack Obama (2009-2017) each appointed two justices in eight years.
During the Obama Administration, Senate Republicans threw norms to the wind and played hardball with SCOTUS appointments. Spearheaded by Sen. Mitch McConnell (R-KY), the Senate abandoned norms and refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland. Too close to the 2016 election, McConnell claimed, despite its being about eight months away.
Four years later, in the waning days of the first Trump Administration, McConnell flipped the script, accelerated the nomination process and pushed through Amy Coney Barrett’s nomination in October 2020, only weeks before the 2020 election.
Given that norms are insufficient to corral political manipulation of the Court, staggered terms are essential. Presidents should be able to nominate two justices during each four-year term, ensuring that each presidential term has equal opportunity to appoint justices. The nominations might come in the second and fourth years of the presidency, for example.
Third, there should be a minimum of 10 members of the Court.
By boosting membership to 10, a 20-year term that is staggered every other year is doable. Two new justices per each presidency refreshes the system without over-reliance on novice justices. If an odd number is preferable, one presidential term could appoint three justices.
- Presidency 1, appointee one and two
- Presidency 2, appointee three and four
- Presidency 3, appointee five and six
- Presidency 4, appointee seven and eight
- Presidency 5, appointee nine and ten (as well as eleven)
- Presidency 6, appointee one and two
How does this compare with the current court?
- George H.W. Bush: Clarence Thomas (two, not four; one retired)
- Bill Clinton: none (two, not four; one deceased, one retired)
- George Bush: Roberts and Alito (two, not four)
- Barack Obama: Sonja Sotomayer and Elena Kagen (two, not four)
- Donald Trump: Gorsuch, Kavanaugh, Barrett (three, not two)
- Joe Biden: Ketanji Brown Jackson (one, not two)
Who is chief justice? The most senior member of the court in longevity. That means the chief justice would rotate every other year and then step down from the high court. Alternatively, the court could elect its chief justice for a limited term.
How do we phase this in? I propose lot draws, with limited terms beginning with the reorganization. Justices could always choose to retire sooner. In the event of a vacancy, a replacement would serve the remaining term, not a new 20-year term. Justices could not hold consecutive terms on the high Court.
Fourth, the Court must have an enforceable code of ethics, like other US courts.
In 2024, the New York City Bar noted “recent revelations of repeated noncompliance with ethics rules by Justices … have pushed public confidence in the Court to a historic low.” In a report on the need for an enforceable code of ethics, the Bar points out that all 50 states “have enforceable judicial ethics codes—including those that bind their highest courts.”
The Bar criticized the 2023 Supreme Court Code of Conduct for its lack of mandatory and enforceable standards as well as its “deficiencies relating to its treatment of gifts and recusal.” It is “less stringent” than the code of ethics that governs other federal judges, for example.
It’s past time for Congress to establish an enforceable code of ethics for Supreme Court justices.
Each of these proposals requires an act of Congress. The fourth is the least controversial. However, no reform is likely until Democrats have resounding majorities in Congress and also hold the White House. Even then, reform is not a certainty.
What can you do? Change requires awareness. Tell your friends you think the Supreme Court needs reforming, and why. Call your U.S. Senators and Representative. Write a letter to the editor or Facebook post. Make a TikTok video.
And vote like your life depends on it. Because our democracy does.
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First published at Substack. Header image: Wikimedia Commons.
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com