Opinion | Two essential reforms to fix the Supreme Court

The sweeping immunity that the court recently granted former president Donald Trump is the latest example of the six conservative justices acting like Republican partisans. Recent rulings striking down bans on bump stocks and weakening the powers of federal agencies continue the court’s pattern of putting judges at the center of policymaking, supplanting officials who are actually the experts on policy issues.

A Republican-dominated, power-grabbing high court can’t be fixed simply by Democrats winning elections. The conservative justices aren’t that old. (The most senior are Samuel A. Alito Jr., 74, and Clarence Thomas, who is 76.) And the opinions and public comments of Alito and Thomas, as well as controversies involving their spouses, suggest that they are very unlikely to retire if there is any chance they would be replaced by a liberal judge.

So even if the Democrats win the 2024 and 2028 presidential elections and keep control of the Senate for the next several years, America could still have another decade of six people enacting an agenda far to the right of the country overall.

We can’t wait that long. This right-wing judicial supremacy must end. There have been lots of proposals from people on the left over the past few years to rein in the Roberts court. Two are essential. First, Democrats need to pass a law adding four justices to the high court whenever the party next controls the House, Senate and the presidency.

That should be paired with a second policy: requiring a supermajority of the court to overturn a federal law or agency decision.

What unifies these ideas is that they acknowledge what everyone knows but the justices themselves and many attorneys won’t admit: Beyond what’s clearly spelled out in the Constitution and legislation, such as presidents serving four-year terms, it’s really hard to determine what is legal or constitutional. The doctrines supposedly guiding judges aren’t formal or universally agreed upon, whether they are from the right (“originalism” and “textualism”) or the left (retired liberal Justice Stephen G. Breyer’s “active liberty.”)

A judge’s views on whether abortion should be allowed will inevitably reflect their broader policy preferences. The current Supreme Court has six Republicans who were chosen because they were expected to consistently vote in favor of right-wing causes. That selection and vetting process has worked — we have one of the most conservative high courts in recent memory.

Because the Supreme Court is making ideological and partisan decisions, it should be accountable to voters and the democratic process, just as members of Congress and the president are. That’s what “court-packing” does. The Democrats would add seats and give themselves a majority when they had the votes. The Republicans would almost certainly do the same.

In a paper they wrote jointly, scholars Adam Chilton, Daniel Epps, Kyle Rozema and Maya Sen estimated that the Supreme Court would have 23 justices by around 2070 if both parties added seats whenever they had control. That’s more than double the current number, but not excessive.

But I’m not longing for a Supreme Court of Chief Justice Ketanji Brown Jackson and six liberals constantly blocking policies passed by a Republican Congress and signed by a Republican president. Unelected judges, whatever their ideology, should not be constantly overriding the decisions of members of Congress, the president and federal agencies.

Presidents and members of Congress are not necessarily smarter than judges. But they are more accountable to the public. If Americans don’t like the policies Congress or the president are coming up with, they can vote them out. The leaders of independent agencies are mostly appointed by the president or Congress and usually have term limits, again creating a clear, democratic path to replacing them.

In contrast, justices have both huge power and lifetime tenures.

So, we should require at least 75 percent of justices on the court to strike down the actions of a federal agency or parts or all of a federal law. If the court had 13 justices, 10 of them would have to come together, likely reflecting a broad, bipartisan consensus that a law is improper. If lower-level federal judges struck down an action of the legislative and executive branches, the rulings wouldn’t…