The conservative trap: Why the future of America depends more on Supreme Court Reform than presidential elections

As the U.S. presidential election draws near, outgoing President Joe Biden has pushed for reform of the Supreme Court. The control of this key institution — whether by Democratic or Republican appointees — shapes American domestic and, at times, foreign policy. While all eyes are on the presidential race, a notable shift to the right is already happening: the Supreme Court is making controversial conservative decisions on issues like abortion, LGBT rights, and gun ownership. If Trump wins, the Supreme Court could not only assist him in evading prosecution, but also in significantly expanding his presidential powers.

• 1.Why the Supreme Court is so important
• 2.The conservative turn
• 3.Americans are losing faith in the court's impartiality
• 4.Biden's proposed changes
• 5.Chances for court reform

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Why the Supreme Court is so important

The Supreme Court is the top judicial authority in the United States, responsible for interpreting both the Constitution and other laws. It serves as a mediator between the executive and legislative branches and resolves disputes between the federal government, state authorities, and local governments. Additionally, since the U.S. legal system relies on precedents, the Supreme Court's rulings set binding guidelines for lower courts in similar cases. Currently, the Court is made up of nine justices, six of whom were appointed by Republican presidents and selected for their conservative views, which often influence their decisions.

The current U.S. Supreme Court

Even a single new justice can significantly shift the balance of the Court. Despite their formal non-partisanship, Supreme Court justices often have very different views on interpreting laws. Democratic presidents typically appoint liberal justices who believe the Constitution should evolve with social changes, a perspective known as the “living Constitution” theory. On the other hand, Republican presidents generally choose conservative justices who see the Constitution as a fixed document, interpreting it based on the intentions of the founding fathers of the late 18th century. These justices are known as textualists or originalists.

The conservative turn

Currently, six of the nine Supreme Court justices hold conservative views and were appointed by Republican presidents, while only three were appointed by Democrats. This outcome is the result of a combination of chance and strategic decisions by Republicans. For example, when conservative Justice Antonin Scalia passed away in February 2016, Democrat Barack Obama was unable to appoint a successor because the Republican-controlled Senate refused to confirm his nominee, Merrick Garland, who later became Attorney General under Joe Biden. Instead, after winning the election that November and assuming the presidency in January 2017, Donald Trump appointed his own choice, Neil Gorsuch, to fill Scalia's seat.

In 2018, conservative Justice Anthony Kennedy retired, allowing Trump to appoint Brett Kavanaugh, his second Supreme Court nominee. Then, in a near repeat of the Scalia scenario, liberal justice Ruth Bader Ginsburg, age 87, succumbed to cancer in September 2020, less than two months before the election. Unlike in 2016, however, one party controlled both the White House and the Senate, allowing Trump to push through the nomination of Amy Coney Barrett — his third appointment — in late October 2020. During Joe Biden's presidency, no justices have passed away, and Biden has only been able to appoint one justice, Ketanji Brown Jackson, who replaced retiring liberal Stephen Breyer.

The Supreme Court courtroom

The new conservative majority on the Supreme Court has provided strong support for the Republican Party — and for Donald Trump. For instance, in 2018, the Court upheld Trump's travel ban on individuals from predominantly Muslim countries. In 2024, after Colorado and Maine barred Trump from appearing on their presidential ballots due to his role in the January 6, 2021, storming of the Capitol, the Court reinstated him as a candidate.

The most significant recent decision in Trump’s favor came in 2024 when the Court granted him broad immunity from criminal prosecution. This ruling could lead to the collapse of many criminal cases against the former president. However, the justices have not been unwaveringly loyal to Trump: in 2021, they refused to hear his lawsuits challenging the results of the 2020 presidential election, and in August 2024, they upheld a guilty verdict against him in a New York case despite a request from Missouri's Republican authorities.

In 2024, the Supreme Court granted Trump broad immunity from criminal prosecution

Overall, the current Supreme Court is considered one of the most conservative in nearly a century. It has not only made a number of significant new rulings, but has also revisited many important legal precedents:

• Lifting restrictions on gun ownership
• Removing limits on campaign financing
• Reinstating voting restrictions
• Legalizing same-sex marriages and issues around LGBT discrimination
• Abolishing affirmative action
• Protecting religious rights
• Allowing abortion bans
• Presidential immunity for Trump

Americans are losing faith in the court's impartiality

Many recent Supreme Court decisions have been unpopular with the American public. For instance, 74% of respondents believe that the president should not have immunity from prosecution, while only 26% think he should be immune. Similarly, 62% of Americans opposed overturning the right to abortion established by Roe v. Wade.

There are also concerns about the impartiality of some justices. ProPublica journalists won a Pulitzer Prize for their investigation into conservative justices Clarence Thomas and Samuel Alito, who received expensive gifts from wealthy friends, many of whom are Republican Party donors. Thomas and Alito did not disclose these gifts or their travel on private planes and luxury yachts.

In response to this scandal, House Democrats called for the impeachment of both justices. However, this effort is unlikely to succeed, as impeachment would require a majority in the House of Representatives and a two-thirds vote in the Senate, which the Democrats do not have. In reaction, the Supreme Court introduced an ethical code, but critics argue that it is far less stringent than the codes for other federal judges and lacks an enforcement mechanism.

Historically, the Supreme Court was the most popular of the three branches of government. However, this is no longer the case. In the 2000s, around 60% of Americans approved of its work, but today, trust in the Supreme Court barely exceeds 40%, marking the lowest level of confidence ever recorded. According to one poll, only three out of ten Americans believe that Supreme Court justices are independent and unbiased, while the majority think that their decisions are influenced by their political views.

Only three out of ten Americans believe that Supreme Court justices are independent and unbiased

Among supporters of the Democratic Party, the attitude is even worse. Many of them see the Supreme Court as a threat to their rights and an obstacle to the implementation of their policy program, with only 24% of Democrats approving of the court's work.

Biden's proposed changes

As soon as he took office, Joe Biden established a reform commission made up of liberal and conservative scholars, former judges, and lawyers. In October 2021, the commission published a report that included various proposals for reforming the Supreme Court. Options included increasing the number of justices, limiting the length of their terms, reducing the Court's jurisdiction, and even merging it with the appellate courts (which would handle cases on a random basis). However, the commission's recommendations were advisory only, and they were largely disregarded, even by Biden himself.

J. Scott Applewhite/AP

Biden eventually called for court reform on June 29, 2024, after he had decided not to seek a second term. He described the current Supreme Court as “uncontrollable” and its decisions as extremist and eroding public trust. Biden was particularly critical of the decision granting presidents immunity from criminal prosecution — this despite the fact that he, as a soon-to-be former president, personally stood to benefit from it. Biden remarked:

“The court's decision almost certainly means that a president can violate the oath, flout our laws, and face no consequences. Folks, just imagine what a president could do, trampling civil rights and liberties, given such immunity.”

Biden did not stop there. He has proposed limiting Supreme Court justices' terms to 18 years, a significant change from the current lifetime appointment. Under this plan, each president would be able to appoint two justices per term, compared to the current system in which a president could theoretically appoint all nine justices if seats become vacant — or appoint none at all, if no deaths or retirements occur. Additionally, Biden recommends adopting an ethical code for Supreme Court members similar to that of other federal judges while also enshrining in the Constitution the principle that former presidents cannot claim immunity.

These proposals — if implemented — would have direct implications for Republican candidate Donald Trump, who is believed to have considerable support from the current Court. Democratic presidential candidate Kamala Harris supports Biden's proposals, while Republicans view them as a threat to their influence on the Supreme Court.

Chances for court reform

Biden's proposal to limit Supreme Court justices' terms to eighteen years is supported by 63% of Americans. However, implementing this change would require a constitutional amendment. Some suggest that legislative acts or a simple commitment from justices to retire after 18 years could be alternatives, but this would still need bipartisan support, which is currently lacking.

The adoption of a basic ethical code for Supreme Court justices is also an uncertain prospect — despite it being backed by over 75% of Americans. In a 2023 interview with the Wall Street Journal, conservative Justice Samuel Alito argued that, according to the Constitution, Congress does not have the authority to regulate the Supreme Court's operations.

Nevertheless, Congress has previously enacted laws altering the number of justices, and the Constitution explicitly allows legislators to limit the types of cases that the Court can hear. Yet uncertainty remains about what would happen if the Supreme Court were to declare such reforms unconstitutional.

Kamala Harris and the Democrats argue that if Trump becomes president, he could replace the 74-year-old Alito and 76-year-old Clarence Thomas with younger conservatives, potentially securing Republican control over the Court for decades. Republicans, in turn, worry that their opponents might attempt to reform the Court by increasing the number of justices, potentially adding several prominent liberals and thereby diluting the influence of its current conservative majority. As a result, the future of the Supreme Court is closely tied to the outcome of the presidential election. The winner could, as in the 1860s, shape the Court’s direction for generations to come.