How to restore the Supreme Court’s legitimacy

Please note that the following does not reflect the official opinions of SCOTUSblog.

The Supreme Court is losing legitimacy – the only superpower it has. It’s under attack from partisan critics and presidents who don’t want their power challenged.

Yet the court isn’t perfect. Does the institution need to change to catch up to the modern era of our politics, or are its anachronistic rituals the only thing keeping it from becoming another failed branch? How do we preserve the last branch standing?

After walking through the current court and the history of how we got here, these are a few of the ideas I propose at the end of my book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court.

Filibuster a move

Judges should be above partisan politics, and they should be seen to be above partisan politics. If a judge can’t get at least a few confirmation votes from senators of good faith on the other side of the political aisle, he probably isn’t going to be a very good judge. But if that sounds too Pollyannaish – and at this point in our confirmation wars, it probably is – two Harvard law students came up with a solution.

Thomas Harvey and Thomas Koenig propose two tracks for confirmation. The first is the old one: get a filibuster-proof supermajority of 60 votes. That is, get through the judicial filibuster we used to have. But if a judge can’t get 60 votes, they add another options: get the support of a bare majority of senators in two successive Congresses.

Here’s how it would work. If one side decides to use their power in the minority to block judges for their own partisan purposes (or for any other purpose – worthy or not), then the nominee would “provisionally” be confirmed with a simple majority. After an intervening election, the nominee would automatically be brought up for a vote again regardless of whether the president won reelection or which party controls the Senate. If the nominee passed the Senate again with a simple majority, then the nominee would be deemed confirmed and take the bench.

I love this proposal because it gives voters the responsibility to decide which side is acting in good faith – the nominating side or the filibustering side. And it makes it much harder to delegitimize judges based on their confirmation process. And it could actually speed up the confirmation process because delay tactics aren’t rewarded. A win, win, win.

Enforce the code

Here’s an easy one. In 2023, the court, for the first time in its history, adopted its ethics code. But what happens if one of the justices violates it? What if someone accuses one of the justices of violating it?

It’s easy to accuse a justice of impropriety. And whether the criticism is fair or unfair, there are no judges for the judges. There is simply not enough trust in our institutions to continue to rely on the honor system.

It’s good to have a code of ethics. It’s better to have one that is enforceable.

An ethics board made up of fully retired federal judges could review complaints against the justices and issue public opinions on how to interpret different ambiguous provisions of the code. This board could make recommendations about how a justice could cure the problem – amending their financial disclosures or paying back the fair market value for concert tickets – or even issue a letter of censure if a justice persists in the violation.

Decisions on whether a justice should recuse himself, however, would not be reviewable. First, I don’t think it would be constitutional. But more important, I don’t think it would be wise. The temperature would get too hot if people thought pressuring an outside board could change the makeup of the court. If a justice has a financial interest in a case, for example, and refuses to recuse, Congress would still be able to impeach and remove the justice. Same as today.

An enforceable ethics code would give the public more confidence in the court. It would also protect the justices from nonsense allegations.

Just say yes to cases

In 2025, the court issued 66 opinions before leaving for summer break. Now, I’ll grant you that they wrote just over 650,000 words over the course of those opinions, but nobody asked for a 29-page decision followed by 49 pages of everyone else’s feelings.

If the court started hearing more cases again, it would lower the overall temperature. There wouldn’t be a gun case for the term. There would be a few, and perhaps the outcomes would be mixed or even – heaven forbid – a bit contradictory. All the better. Between 2022 and 2025, the court issued five decisions about gun rights. The pro-gun side went three and two. If that had been the outcome in a single term, it would have been pretty hard to say that one side or the other was running away with the game.

But in a single week in June 2025, eight different petitions for certiorari were filed at the court on gun-related issues. Chances are they’ll all get rejected. That same week, two other gun-related petitions – cases about state laws banning high-capacity magazines and guns like the AR-15 – were turned away.

Instead of waiting for the perfect pitch, the court should start swinging. Lower the number of votes to grant review to three instead of four. Or nominate justices who agree to bring back the courtesy fourth to grant review if three other colleagues want to hear the case.

Just say no to cameras

There is such a thing as too much of a good thing. So as weird as this sounds, I’m against transparency as a value in and of itself.

Those who want cameras inside the Supreme Court believe that they will lead to more people understanding what the court does. If I thought that would be the primary result, I’d be all for it. I don’t. It ruined Congress, and it’ll be worse for the court.

Instead, I believe the biggest effect cameras would have will be on what types of people presidents pick to be justices. Once oral arguments are packaged for cable news and TikTok, presidents will look for justices who excel at the shallow stuff. We’ll get a lot more show ponies and a lot fewer boring nerds. I, for one, want the nerds.

That being said, I would keep the live audio so that anyone can listen in to what is happening in real time. If you really want to understand how the court works, there is no better way to do it – in my opinion – than taking a nice, long hot shower while your phone sits in a ziplock baggie pumping out the melodious sounds of the chief justice saying, “We will now hear argument in case …”

Stop the forum shopping

The California attorney general files nearly all of his lawsuits in the Northern District of California, where he is currently guaranteed to get a judge nominated by a Democratic president. The Texas Attorney General files his lawsuits in single-judge divisions in cities like Amarillo where he is guaranteed to get that precise judge.

These judges could be the most fair and impartial judges in the world. (And for what it’s worth, I think this whole forum-shopping thing is as unfair to the judge’s reputations – and workload – as anything else!) But if the advocates are going out of their way to find a friendly forum, how can that not undermine the reputation of the court system? They’re signaling to the world that they believe there are partisan-friendly judges who are more likely to rule for them. What does that say for the rule of law? Not much.

When a party seeks an order preventing a law or executive action from going into effect nationwide, I’d vote for the random assignment of a single federal district judge. It’s not perfect. But the end result, I predict, would increase trust and legitimacy in the judiciary.

Break the tie

In the 2025 case of Oklahoma Statewide Charter School Board v. Drummond, the Supreme Court was set to decide whether a Catholic school in Oklahoma would become the country’s first religious charter school.

The legal question was fascinating: Is a charter school a public school? After all, it exists only because of a charter and funding from the state. If so, the state would be violating the establishment clause by chartering a religious school. Or is it more like a private school? It has its own privately appointed board of directors and is responsible for its own curriculum and policies. If so, then the state would be violating the free exercise clause by discriminating against religious organizations for acceptance into a program that they would otherwise be eligible for.

Justice Amy Coney Barrett recused herself. The other eight justices divided equally: 4-4. And that meant the lower court decision stands – in this case the Oklahoma Supreme Court’s holding that a religious charter school was more like a public school and violated the establishment clause. The first tie happened in 1792 – under Chief Justice John Jay – when the court divided 3–3 on a motion. And here we are some 230 years later with recusals and ties still wreaking havoc on the institution. Efforts to get justices to recuse themselves – and criticisms when they don’t – are another way people try to undermine the legitimacy and trust in the institution. So let’s fix it.

In total, 33 state judiciaries reject this “ties happen” approach. Surely, some of them have a better way? In Louisiana, as the U.S. Court of Appeals for the 5th Circuit Judge Don Willett helpfully noted in a 2021 law review article, the court clerk “randomly plucks a potentially tiebreaking justice’s name, pre-deadlock, from a plastic Halloween Jack-o’-Lantern.” Fun!

Have a senior justice fill in (Justices Stephen Breyer and Anthony Kennedy would be eligible currently). Or pick a chief judge (who all ascend to the position based on seniority) from the circuit appellate lower courts at random. Or allow each justice, at the start of the term, to designate their own “recusal judge” from the lower courts so that if they’re recused in a case, that judge automatically comes in.

Any of these options are better than the current system.