The Judiciary Act of 1789, Meet 2026

 

On September 24, 1789, Congress passed the Judiciary Act of (of course) 1789. The act created the office of the Attorney General, laid out the structure of the federal judiciary system, and set the composition of the Supreme Court at six members: a Chief Justice and five Associate Justices ... who were - then as now - not bound by any of the ethical rules which bind other judges. The fact that there are now nine members on the court ought to be a reminder that the size of the court and the qualifications of its members are not mandated in the Constitution ... which gives that responsibility to Congress (see Article III, Section 1). Whether Congress is up to the task is subject to question.

The Supreme Court's hard right turn under Der Furor has reinvigorated the periodic calls for reform of the court. Conservatives, in the ascendency (for the moment), strongly oppose any changes to the makeup of the court and the laws under which it operates. "Liberals" (a term with little meaning at the moment), seeing the court's willingness to erode basic rights and empower a president with dictatorial dreams, are pushing for reforms.

The last meaningful attempt to look at Supreme Court reforms was carried out by the presidential commission established by then-President Joe Biden with Executive Order 14023*. The commission published its final report on December 8, 2021, laying out several categories of reform and analyzing specific measures to address each. The commission and its report generated much attention and no action, other than the publication (under duress) on November 13, 2023 of the 15-page "Code of Conduct for Justices of the Supreme Court of the United States," issued by Chief Justice Roberts ... probably in order to avoid having Congress actually draft a stronger one on its own.

The Roberts court has proven itself willing to ignore settled law in favor of conservative principles and wishes, and has shown a willingness to use the so-called "shadow docket" to issue decisions without needing to spell out the legal and historical rationales for them. This leaves the inferior courts without clear guidance to follow in order to decide other cases which may be affected by those decisions.

Concern over the direction and behavior of the Supreme Court led the Brennan Center for Justice to issue a detailed study in April of this year titled "Six Solutions to Fix the Supreme Court." The recommended solutions were:

Enact 18-year term limits for Supreme Court justices. Lifetime assignments to the court make it virtually impossible to remove corrupt or mentally declining justices, particularly when Congress is dominated by a single ideological bloc unwilling to impeach justices it favors. Hard term limits are a must.

Hold justices to the highest ethical standards. The fact that there is no formal, binding code of ethics for Supreme Court justices, as there is for every other judge and justice in the country, is ridiculous. This should be a no-brainer.

Curb abuses of the shadow docket. The court is, as its name suggests, "supreme," and the weight of its decisions requires it to provide sound legal reasoning to guide lower courts and give the public confidence that decisions have been clearly and rationally arrived at. 

Fast-track Congress’s response to rulings. It's not enough for the court to decide - Congress often needs to produce legislation to implement the rulings ... which, given the speed of Congressional action, can take far too long. Such action needs to take priority in Congress to ensure that the court's decisions are implemented in law as soon as possible.

Improve the confirmation process. As we saw with the confirmation hearings for Clarence Thomas and Brett Kavanaugh, the process is a laughable farce. 

Allow cameras in the courtroom. I'm okay with this one, but I don't think it would be as effective as its supporters think.

All of these are important and should be implemented, but I would add three other measures as well:

Expand the court to 13 members. A larger bench will allow the court to hear more cases and give the appropriate amount of time and deliberation to each;

Hear and decide cases using panels of seven or nine randomly-assigned justices. Randomly assigning justices to panels for each case will reduce the chance that an ideological bloc can impose a particular viewpoint on decisions; and,

Stagger the term limits of the justices to allow each president to nominate the same number of justices per term. I believe the math can work if the court is expanded and the term limits staggered. This would prevent problems such as we have now, where Der Furor was able - with blatant political chicanery and the support of a compliant Senate - to stack the court with ideologues.

The decline in respect for the Supreme Court as it seems willing to empower a dictatorial presidency should scare every thinking American. It is long past time for Congress to revisit the Judiciary Act of 1789 in light of the radically changed environment of 2026. Now would be a good time to write to your elected reprehensives and suggest they get on with it when they're not too busy raising money and running for reelection.

Have a good day. More thoughts coming.

Bilbo 

* Good luck finding it, as the Federal Register is now protected by an impenetrable CAPTCHA wall. Chances are that it was rescinded by Der Furor, anyhow.