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Law and public policy experts weighed potential reforms to the Supreme Court in a panel event at Harvard Law School on Wednesday.
Law School professor Stephen E. Sachs ’02 moderated the panel, which brought together professors from Yale Law School, Duke Law, the University of Virginia, the University of New South Wales Sydney, and the Harvard Kennedy School. The panel discussed the Presidential Commission on the Supreme Court of the United States, which released its final report outlining proposed changes to the court in December 2021.
The panelists agreed that any reform should both insulate the justices from partisan politics and preserve the legitimacy of the court.
Neil S. Siegel, professor of law and political science at Duke Law, said the court’s legitimacy “always exists, or not, in the minds of an audience.” He added that justices should therefore strive to be “above reproach” and should recuse themselves from cases when necessary.
“I’d like to see the justices act more like judges,” Siegel said. “I’d like to see them act like their robes are black, and not blue or red.”
He stressed that the court has existed for centuries and will endure long after the current justices’ tenure.
“Sometimes I worry that at least some of the justices some of the time don’t really appreciate that,” he said.
Maya Sen, professor of public policy at the Kennedy School, said the Supreme Court no longer represents the average American, especially in light of the court’s recent swing to the right. Following the confirmation of three conservative justices in just four years under former President Donald Trump, the court reached its current 6-3 conservative majority.
“The Supreme Court’s really no longer in sync with the majority of Americans,” Sen said. “The court really is not representative of the average American, but is actually now currently much more representative of the average Republican Party voter.”
Sen pointed to the rushed confirmation of Justice Amy Coney Barrett as a catalyst of the court’s politicization and the public’s disapproval of the court.
She said the misalignment of the public’s opinion with court rulings has contributed to calls for reforms to the court.
“The more that people see the court’s rulings in a way that’s opposed to their own views, sort of in conflict with their own views, the more likely they are to support things like terms limits and court expansion,” Sen said.
Still, the panelists highlighted the dangers of packing the court, with Siegel cautioning that court packing is “almost always a very bad idea.”
“It risks severely damaging, if not destroying, the court’s legitimacy,” he said. “I think it does raise the question of whether we want two branches of government or three.”
He suggested that a “piece of low hanging fruit” that could be implemented to improve the court is the adoption of an ethics code.
“It’s really not acceptable that they are the only federal judges to whom an ethics code does not apply,” Siegel said. “They should adopt it themselves, and they should try in good faith to comply with it.”
UNSW Sydney professor Rosalind Dixon warned that efforts to reform the court must ensure the public’s trust in the justices does not erode.
“We need to approach this with a view empowering democratic politics and encouraging a more responsive court,” Dixon said. “But not further alienating a conservative court into stepping away from its absolutely most fundamental function, which is to uphold the rule of law in a constitutional democracy.”
