Support for Supreme Court Reform Is a Matter of Gender | Opinion

Our recent column on voter perceptions of the Supreme Court demonstrated there is broad public support for President Joe Biden’s key Supreme Court reform proposals. An Emerson College poll showed that when it came to ethics reform, as well as subjecting Supreme Court justices to term limits, a substantial majority were in favor of enacting these changes.
Such a plan would hold justices to the same standards as other federal judges, each president would get to appoint two justices to serve staggered terms of 18 years.
The Emerson poll went deeper, though, to assess views on the most salient social issues confronting the country that have been the subject of extremely controversial Supreme Court rulings: Namely, the Dobbs decision overturning the longstanding Roe v. Wade ruling that recognized broad rights for women seeking abortions; and the court’s decision in Heller that the Second Amendment guarantees an individual’s right to possess firearms without regard to participating in the government’s militia. The poll not only assessed views on those decisions, but the appetite for changing the composition of the court to overcome those decisions.
While a majority of voters disagree with the Supreme Court decision overturning Roe, only a plurality of men disagree with the decision, with an overwhelming majority of women disagreeing with it. That difference becomes even more striking among young women between the ages of 18 and 29 and women over 60, where close to two thirds of women object to Roe having been overturned, while the percentage of men in those age groups disagreeing with the decision is much smaller.
The Supreme Court’s decision to allow the continued sale of the “abortion pill” mifepristone received even stronger voter support, with only 18 percent of voters disagreeing with the ruling. (It is worth noting that the court did not rule on the merits of this case, but simply that the parties that brought the case did not have standing to challenge the Food and Drug Administration’s decision to allow the sale of the drug.) In fact, more than two thirds of Democrats and independents agreed with the Supreme Court’s ruling. Even a majority of Republicans supported the decision.
Yet, when asked if they would support an expansion of the court by appointing an additional four justices—bringing the total to 13— to change the direction and current composition of the court, a plurality opposed such a move. Can these views be reconciled?
What is significant is that passions on the abortion issue, as well as gun control, run very high. The court expansion question was asked specially as a remedy for these high-profile decisions where all voters tend to have strong views.
The question on term limits was asked in the abstract as a reform proposal not tied to any specific court decision topic. Thus, contrasting the broad support for term limits for Supreme Court justices versus the disapproval of court expansion is very significant. Generalizing, the public seems more comfortable with reform that is not geared to driving a specific outcome.
But how to do it? Expanding the court, assuming the Democrats captured the White House and both the House of Representatives and the Senate, could be achieved through legislation, and given that Supreme Court appointments are no longer subject to a 60 vote filibuster cloture test, could arguably be enacted by a simple majority vote of both houses.
By contrast, there are some who would argue that term limits for Supreme Court justices would have to be accomplished through a constitutional amendment—a very lengthy process that has almost no chance of happening given the percentage of state legislatures that would be necessary for any amendment to be approved.
However, there is a potential way to avoid the amendment process and allow legislative enactment to be the path forward, though passage would be subject to the 60-vote filibuster cloture rule in the Senate, making passage difficult. Instead of proposing an 18-year limit to existing Supreme Court justices, have it apply only to new appointees, who, after 18 years, would be required to take “senior status.” Senior justices would play a less active role, but one that would allow the constitutional requirement of lifetime appointment for federal judges to continue.
Since new term-limited justices would be appointed before existing justices retired, given that current Supreme Court justices would likely continue to serve for a significant number of years—since 1970 the average term of a Supreme Court justice is 26 years—as new justices were added to the court, the court size would also expand. In fact, the court size would probably not come back down to nine justices for a very significant period.
By supporting term limits imposed by legislation one also is having to support an expansion of the court—but one that occurs slowly. However, if you believe the country should move forward quickly to overturn Supreme Court precedent on abortion and guns, adding new justices all at once is the far more effective path.
It is significant that women support expanding the court to bring back a national right to abortion, while men oppose expansion.
The question on expansion was asked in as balanced a way as possible. The question about reinstating Roe asked if one would favor expansion “even if it increased the nation’s polarization and created greater deadlock in Congress.”
Asked that way, a majority of respondents opposed expansion of the court to 13 justices. But a slight majority of women supported the approach, while a majority of men opposed it. When it came to enabling stricter gun ownership rules by expanding the court—framed with the same caveat, the result was the same, though, again, a slight majority of women disagreed. Still, whether talking about the issues of abortion gun control, more than two-thirds of Democrats support expansion of the court.
While nothing will happen during the remaining five months of the Biden administration, this sets up some key decisions for Vice President Kamala Harris, if she is elected. Does she pursue Supreme Court reform by offering a term-limits proposal even though its implementation may take decades to ultimately change the balance of the court? The term-limit approach is also dependent on future presidents staggering appointments, regardless of their political leanings.
On the other hand, given strong support among both Democrats and women, would Harris look to having much more immediate impact by increasing the number of justices right away through the legislative path? As noted above, she may not have that opportunity unless her party takes the House and Senate, along with the White House.
While a majority of voters clearly support term limits and a majority of voters clearly oppose court expansion, the question a President Harris would face is whether she is prepared to accept increased polarization and congressional deadlock to ensure women’s reproductive rights and gun safety. The Emerson poll shows the way and points to the difficulties. To engender the momentum for change, the first woman president would need to deftly ignite her own gender’s support to affect that change.
However, should the Republicans flip the Senate or hold on to the House of Representatives, Harris would be wise to, at the very least, put forward a set of ethics reforms for the Supreme Court. Not only does that have strong support among Democrats and Republicans, it would be an important first step in restoring the public’s faith in the Supreme Court.
Tom Rogers is executive chairman of Oorbit Gaming and Entertainment, an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, a member of Keep Our Republic (an organization dedicated to preserving the nation’s democracy). He is also a member of the American Bar Association Task Force on Democracy.
Susan Del Percio is a Republican strategist and crisis communications consultant with over 30 years of experience in the political, government, nonprofit, and private sector arenas. She is also a political analyst for MSNBC/NBC News.
The views expressed in this article are the writers’ own.