Proposed Supreme Court Reforms Won’t Work: Now, more than ever, we need a robust independent judiciary.

‍ ‍(first published June 16, 2026 at https://andersnewbury.substack.com)

The United States Supreme Court is again the target of a growing chorus of critics demanding reform. The Republican-shaped Supreme Court has been on something of a tear in recent years: overturning long-standing precedent on abortion rights and the administrative state, granting wide-ranging Presidential immunity, skirting ethics concerns surrounding undisclosed gifts, enabling an all-out gerrymandering arms race, and using a slew of opinionless “shadow-docket” emergency stays to facilitate controversial Trump Administration policies. Most concerning, the Court seems largely unwilling to stand in the way of the Administration’s openly authoritarian leanings.

In response, Supreme Court commentators such as Professor Kate Shaw proposeCourt overhauls in the form of term limits, mandatory shadow docket written opinions, Court expansion, ethics codes, and a supermajority requirement to declare acts of congress unconstitutional. Most of these reforms are designed to reign in the authority and reach of the Supreme Court. But they are unlikely to address the critiques raised. And, from the standpoint of combatting authoritarianism, some could make matters much worse.

At their best, judiciaries can protect vulnerable minorities, guard fundamental rights, and press a brake pedal on the slide to authoritarianism. All these capabilities are essential now, more than ever before. We need a court that is sufficiently independent and powerful to play this essential role. As much as the present Supreme Court has thus far failed to do so, divesting the Court of its ability to act as a check in the future will only aid the cause of authoritarianism.

Term Limits

Defined term limits for the U.S. Supreme Court might conceivably have some desirable effects. They would prevent justices from influencing the identity of their successor with the timing their retirement or, failing that, placing the matter into the hands of fate. Term limits would also prevent any one justice from gaining a particularly outsized influence on the development of the law through their longevity—Justice Thomas’s 34 years on the Supreme Court makes him currently the second most long-serving justice in American history.

But how these term limits would actually address any of the frustrations listed above is unclear. There is no reason to believe that replacing justices at more frequent and predictable intervals will result in more restrained, less political, justices. The incentive to nominate justices maximally inclined to further one’s agenda will remain the same. And a higher turnover rate might only exacerbate the Court’s current willingness to abandon historic precedent.

The “Shadow Docket”

The Court’s expedited emergency docket is referred to as the “shadow docket” due to the absence of signed written opinions explaining decisions. The practice is typically used to review a lower court’s preliminary disposition while a case winds its way through the court system. The Supreme Court has turned increasingly to opinionless shadow docket rulings in recent years, including in high profile matters like immigration, foreign aid, or student financial aid. With the Court’s growing reliance on the shadow docket, critics increasingly advocate for requiring the Court to provide its reasoning in a written opinion accompanying these emergency orders.

The Supreme Court, armed with elite ivy league law clerks, presumably could write succinct opinions setting forth legal reasoning quickly enough to avoid delaying the issuance of an emergency order. But it’s worth asking whether doing so would address any of the concerns currently surrounding the Court.

Courts typically explain their reasoning to: (1) enhance their credibility with the public, (2) encourage good decision making by judges, and (3) aid in developing the law through precedent-setting. None of these interests would be served to any great extent here.

First, as discussed below, Court critics typically aren’t concerned with preserving the Court’s credibility. Second, most Court critics are legal realists who argue that justices of the Supreme Court, when faced with an open-ended legal question of significant political valence, are at least subconsciously starting with their preferred result, before working backwards to develop the necessary supporting rationale. In other words, requiring the Court to explain its rationale for emergency decisions would be unlikely to change the result in most cases.

Third, further developing the law on these cases would have the opposite effect from what reformers want. The opinions’ new language and standards would likely be as troubling as the results they justify, which litigants could cite to more persuasively in future cases. In Noem v. Vasquez Perdomo, the Supreme Court issued an opinionless emergency order overturning a lower court decision blocking certain Trump Administration immigration enforcement practices. Justice Kavanaugh, however, wrote a concurrence sharing his own view that “apparent ethnicity,” if paired with another other factor like speaking Spanish, was sufficient for immigration enforcement officers to stop and question an individual. If views like these were regularly set forth in majority opinions for emergency rulings, their legal reach could extend far further than they currently do.

Doing away with the emergency docket altogether would be far more dangerous. More than ever, we now need a judiciary prepared to move at the extraordinary pace of this Administration, not the usual ponderous plod of litigation, in order to swiftly counter sudden authoritarian moves or breaches of fundamental rights, such as wrongfully, and without due process, sending a man with lawful status to a hellish foreign prison.

Available shadow docket reforms, therefore, are unlikely to reduce either the frequency or reach of unpopular Court rulings and could in fact do great harm.

Court Packing

Expanding the size of the Court—“court packing”—would allow an administration to nominate far more justices to the Court than it otherwise might, thereby shifting the composition of the Court towards a majority more sympathetic to the governing presidency’s agenda. There is some precedent for this: President Roosevelt famously threatened to pack a Supreme Court that was repeatedly thwarting his New Deal agenda.

Packing this Court would not address the complaints currently leveled at it and would in fact jeopardize its ability to stand up to constitutional abuses by this or a future executive. For one, any such attempt at the present juncture would result in a Court even more aligned with the Trump Administration, and even less likely to serve as a check on its authority. And even if Court packing were employed by a future Democratic president, it would likely spark an escalation in which every new administration packed the Court with as many new justices as necessary to gain a sympathetic majority. The Court would lose all legitimacy and institutional independence necessary to serve as a check on the executive as it expanded from nine to 99, or 999, members primarily selected by the most recent executive. Court packing is rightly associated with nascent authoritarian regimes seeking to weaken the institutional independence of a judiciary. This is just what we need to avoid at the present juncture.

Constitutional Review

The Court’s power of constitutional review is its super-veto that allows a Court to declare government actions or laws unconstitutional. The power of constitutional review doesn’t appear anywhere in the text of the Constitution; famously, it was self-declared by the U.S. Supreme Court in the 1803 Marbury v. Madison decision. Since then, both the public and the government (with the tragic exception of Andrew Jackson, resulting in the “Trail of Tears”) has respected the Court’s constitutional overrides.

Court critics question this premise of American law, asking why we should allow a majority of an unelected body to void the handiwork of the people’s elected representatives. They propose rejecting the power altogether, or limiting it by requiring a Court supermajority to make declarations of unconstitutionality.

Again, it is unclear that this would address the problems Court critics want to solve. The Dobbs decision didn’t strike down any law as unconstitutional, it did the exact opposite in overturning Roe, which did strike down state abortion bans as unconstitutional. The shadow docket rulings clearing the way for the Trump Administration’s most aggressive immigration enforcement measures likewise declinedto exercise a constitutional prerogative over the executive branch. While Democrats have reason to be dissatisfied with Court rulings striking down some of their policy agenda over the years, the most pressing issue currently appears to be that the Court is failing to wield its power of constitutional review when needed.

Court Legitimacy

As part of their efforts, Court critics generally advocate for piercing the Supreme Court mythology—which holds that enlightened justice-scholars simply apply law to facts in an apolitical, almost mathematical, manner. Critics seem to believe that undermining this belief will make the public less likely to tolerate unpopular rulings from the Court, thereby making elected politicians bolder in enacting court reforms and the Court correspondingly more cautious. As I have written elsewhere, the public is largely apprised of the reality already, and there are good reasons to tolerate such an institution even without subscribing to that myth.

Ultimately, these reforms not only do little to solve the identified problems, but they could make matters much worse. Some were proposed at the state level in Montana in recent years, as the GOP-controlled Legislature retaliated against the more moderate state supreme court for thwarting some of its policy goals. So far, none of these efforts appear to have been a boon to the state of democracy in Montana.

The promise and limits of the Supreme Court

As mentioned at the outset, courts do have a role to play in preserving democracy. But even the best Supreme Court could not save a democracy determined to self-destruct. Courts can only slow it, perhaps buying time for the winds to change. In a speech to new citizens made during World War II, Judge Learned Hand acknowledged the limitations of his profession:

[T]his much I do know—that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

Whatever ails American democracy—now featuring a politics of spectacle more resembling an octagon than a round-table—lies far deeper than what either the Supreme Court, or the proposed reforms to it, can operate on. Perhaps we can reclaim in time that spirit of Judge Learned Hand’s proposed democratic virtue, that which: “is not too sure that it is right”; “seeks to understand the mind of other men and women”; “weighs their interests alongside its own without bias”; and believes “there may be a kingdom where the least shall be heard and considered side by side with the greatest.” Perhaps not. But an attempted overhaul of the U.S. Supreme Court may only diminish the time we have remaining with which to do so.