A Damning Critique

When a noted Constitutional scholar and a retired federal judge jointly issue a damning critique of the current Supreme Court, the particulars of that criticism are worth considering.

Lawrence Tribe and Nancy Gertner have co-authored such an essay for the Washington Post.

Tribe, as Americans who follow such matters know, is a highly respected constitutional scholar who taught at Harvard; Gertner is a retired federal judge. Both served on Biden’s Commission charged with reviewing the operations of the Supreme Court , and both now endorse the (longstanding) scholarship advocating the addition of Justices. Interestingly, they write that they entered the Commission’s deliberations with different preferences for addressing the Court’s declining legitimacy–initially, both had favored term limits but not expansion.

They changed their minds.

After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

In their essay, they explained that their vote in favor of the final report did not signal  agreement with all of it, but approval of the process, which they note accurately reflected the complexity of the issue and the diversity of views.

There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates.

In two paragraphs that sum up not just the opinions of these two experts, but–sadly–the all-too-obvious reality of where we find ourselves today, they accurately pinpoint the defects of today’s Court and the impact of those defects on efforts to remedy America’s ills.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

The essay accuses today’s Court of operating to entrench the power of one political party  by upholding measures to constrict the vote and deny ballot access to people of color and other minorities, and by “allowing legislative district lines to be drawn that exacerbate demographic differences”–i.e., refusing to hold gerrymandering unconstitutional.  And they note that, absent intervention, a Supreme Court that “has been effectively packed”  “will remain packed into the indefinite future, with serious consequences to our democracy.”

This is a uniquely perilous moment that demands a unique response.

The concluding paragraphs are worth pondering and– if the political will can be mustered (a critical unknown)–acted upon.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.


  1. Why not both? To increase the number of “justices” on the court and, at the same time, impose term limits by a mandatory retirement cycle every two years. That way, with a nine member court, the court would be renewed every 18 years, and the role of political partisanship would be reduced, if not eliminated.

  2. Article III, Section 1 of the Constitution; “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time may ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receives for their Services a Compensation,which shall not be diminished during their Continuance in Office.”

    There is no specified number of judges on the Supreme Court but the number of inferior courts may be ordained and established. The increase in population, crime and number of courts to bring cases to the Supreme Court should be an indication of the need for an increase in their number from when the Constitution was written. Term limits keeps such as Thomas and Kavannaugh sitting but would lose such as Ruth Bader Ginsberg long before her death ended her stabilizing many SCOTUS verdicts. The total politicalization of our entire court systems at all levels is handing the future of millions of Americans to NINE POLITICAL APPOINTEES for their life span.

  3. Yes. Do both. When you have incompetent Presidents appointing corrupt Justices who have literally been seen being favored by corporate/banking America (Scalia), and who are completely without the fiber to serve the entire population (Roberts, Alito, Gorsuch, Kavanaugh, Thomas, Barrett), this is what kangaroos are made of. These six very bad Justices were all appointed by really, REALLY bad Presidents (both Bushes and Trump) and their Republican sycophants in the Senate. Yes, some Democrats voted some of these creatures in too, but getting rid of their right-wing extremist judgements would preserve, protect and defend the Constitution against the depredations of the corporate/banking elite.

  4. The “stench” of corruption flows throughout all branches of our government, including the fourth branch – the free press (media).

    The source of the corruption is the oligarchs and their lawyers/tax accountants/banksters.


  5. I haven’t read the report, but it would definitely be remiss if it didn’t call for ethics rules to be applied to the SCOTUS. I would also like to see a qualified rating from ABA as a minimum qualification. I don’t think the Senate will pas an expansion or term limits. I personally don’t like term limits, but perhaps a mandatory retirement age would be a good thing. We might lose Breyer, but we could get Thomas and Alito.

  6. Will the conclusions of this commission convince President Biden to expand the court? He has stated in the past that he is against expansion, so will he follow their recommendations? What does he have to lose? He will be 82 at the end of his term and I doubt that he intends to run again.

    I completely lost respect for the Supreme Court when McConnell got away with turning it into a clown court by denying Obama’s appointment choice and then furthering the damage under 45.

    Vernon, I also could not stand Scalia. He was a shameless corporate shill.

    It is time to both expand the court and enact term limits. I also believe judges should not have such extreme personal protection from our legal system that allows them to get away with almost anything except murder. There needs to be a comprehensive set of rules/regulations that judges must abide by and may not break or even bend, to be accompanied with a comprehensive list of legal consequences that will be filed against them if they choose to break or bend any of the rules/regulations.

  7. Government by the nature of society is contentious. Its sole duty is to hold the behavior of some as legitimate and condemn the behavior of others. It must be the institution most capable of extremely difficult choices, of turning the gray of life into black and white law.

    Our founders set a very high bar for both governance and politics when they aspired to so much for governance but accepted the political reality of their time and place including the stench of slavery.

    When I was young there was every indication that their lofty aspirations defined us but instead, the stench proved much stickier.

    I’m disappointed in us. I think that our shallow realization of comfort has overtaken the nobility of purpose.

  8. I don’t know how packing of the SCT is supposed to work. The Ds get in power and they add justices. The Rs get in power and they add justices. Where is this going to end?

    On the other hand, I have never thought lifetime appointments for federal judges were a good idea. I love the idea of long terms for federal judges, but not limitless terms. And I love the idea of 18 year SCT terms with an opening every 2 years so every president gets two appointments during his/her term. Probably the Constitution would have to be changed to make that happen.

    Not at all a fan of the ABA, Peggy, so I don’t agree with turning judicial appointments over to that elitist body which has its own agenda. One of the problems with the legal profession are bar associations which only truly represent a small fraction of attorneys.

  9. I would say that McConnell is responsible for the current stench in the Supreme Court. HIs partisan machinations to deny Obama the right to appoint a justice and then later when he and Trump rushed Barrett through created a highly partisan Supreme Court.

    I think Biden needs to expand the court to 11 to make it more nonpartisan or, if you will, bipartisan. This would enhance the court’s objectivity.

    Amy Coney Barrett does not understand how painful it can be to give a child up for adoption. She also does not understand that demanding a child/woman give birth to a child conceived by rape or incest further traumatizes the victim. I wonder what she would do if one of her girls was raped? I doubt she has struggled with that question.

    I like the idea of term limits rather than retirement age because, after all, RBG was smart as a tack until she died. I would support a 6 year term limit.

  10. It is clear that the court has been compromised by people who were elected to serve the people, but could not care less about that. McConnell has
    shown that nothing is more important to McConnell than McConnell…damn the consequences!
    It is something of a breath of fresh air, to see that these two folks have changed their minds, and come out of the review process in agreement with this
    non-scholar’s point of view: Expand the court, or the country pays dearly for not doing so,

  11. A majority of the Supreme Court was appointed by presidents who lost the popular vote. A majority of the Supreme Court lied during their confirmation hearings when they stated that they respected the rule of law and believed in stare decisis, the value of precedent.

    A majority of the supreme court are Catholics, and those Catholics are “pro-life,” yet pro-death penalty. A majority of the supreme court never misses an opportunity to decry judicial activism, while at the same time engaging in the most blatant examples of it in history.

    And if you were to make a list of the 20 worst decisions in the history of this country, well over half of them have been written by or signed off on by Scalia and a majority of this very same court. And if we don’t do anything about it when we have the chance, shame on us and good luck explaining the inaction to future generations.

  12. The courts have always been political. Sonia soto Moyers comments are political. Criticism of the current court is political. The only way a court can be independant is if it is not to be harassed and judged for its decisions based upon what laws are constitutional. Even the DOJ today is being criticized for being overtly political and moreover a direct arm of the current President. The IRS was weaponized against conservative organizations during the Obama administration. The FBI is being found to be without honor and respect due to the Steele Dossier and the lies it told about a sitting president. Congressman Cheney on the January 6th commission inadvertently admitted they were out to put people in prison. Not investigate to find out if someone might need to be prosecuted. Congressman Schiff should be disbarred by the California’s Supreme Court for altering evidence, conversations between Con Banks and Jordan. Will that court not act politically and do its just duty, No!!!
    The real disaster that visited the US Supreme Court came when it changed the ACA instead of sending it back to Congress. So how can anyone trust Soto Moyer’s comments or these scholars who at that time found no criticism of the court. A total partisan piece of legislation that still today is blamed for Republicans getting control of the White House, Congress, and now the Supreme Court.
    When politics back fires on us, we are to blame. We have to find a way to reach across the aisle and move this nation forward without trying to pull the wool over everyones eyes.

  13. I have been against expansion of the court even through the machinations of the senior senator from Kentucky, suggesting instead that we wait and see how the court treated the Mississippi case which provided the court with the opportunity to reverse Roe. The court has now effectively told us how they are going to treat Roe with their leaving its unconstitutional language in place in a Texas case pending a decision on the Mississippi appeal, to wit: Roe will be reversed or gutted. I am now in favor of expanding the court by four justices, or five if we have a looming retirement.

    To the argument that Republicans will expand the court and that we will have a back and forth exercise in expansion depending on who is in power in the future, I suggest that we will have no respect for the court and that such a risk is worth taking, considering the alternative.

  14. The Supreme Court nominees should be decided by bi-partisan committee and current court members. Not the president at the time. It should be an even number so the opinions are held in the balance of one person. Also, the justices should be held accountable for what they say at their confirmation hearings – I’d like to know what Susan Collins would say about that, now…

  15. The Left doesn’t have the votes and are losing power every single day. The mid-terms will be the final nail in the coffin. America has been awakened to the hypocrisy and destruction done by liberal policies. The more they lie and try and twist the truth further exposes their motives…Your Trump PTSD is getting really old. .. you aren’t changing anyone’s mind for your agenda and are losing the independents in great numbers. A large majority favor voter ID – the old racist cry is SO old.
    You’re not going to get to change anything – you DON’T have the votes. Deal with it!
    Victor Davis Hanson sums it up best: https://victorhanson.com/why-is-the-left-worried-suddenly-about-the-end-of-democracy/?fbclid=IwAR0yM_9XmsOFKwE_7ZK50D6r9pqJkCWDlmFYHr0gW1HHcK4tCmgO-bbn_I0

  16. If magats spent one tenth the time they use to deny eligible voters their right to vote, imagine the gains in solving real problems in America.

    There has always been voter id. The problem with voter id is it does not eliminate the voters magats think are unworthy of having the right to vote. Just like with undue burdens on poor women’s rights to abortion, magats strike with surgical precision to remove voters from election rolls. And then lie about it.

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