Posted by Authored by Tyler Clark
The Supreme Court is extraordinarily powerful. It is composed of nine unelected judges, with lifetime tenure, who select which of the nation’s most consequential legal questions to adjudicate. Through the seemingly neutral endeavor to “call balls and strikes,” as Chief Justice John Roberts famously explained, the Supreme Court (SCOTUS) is increasingly regarded as an institution that takes more than it gives each time it creates new law rather than merely interpreting it.
Reasonable minds can value productive disagreement over the role our highest court plays in our lives. But what is clear is that the court’s plot to undermine Congress as the catalyst for policymaking obstructs a check on its own power as a co-equal branch of government, precluding the representative body’s own directives. If it is impossible to raze a rogue court that relies so heavily on unsettled pretexts to interpret a Constitution that Americans have, for better or for worse, come to idolize, then wholesale reform must be the compromise.
Dark Money, Partisan Capture, and Judicial Supremacy
During late October 2020, as COVID-19 ripped through the nation and caused an unprecedented national health crisis, Sen. Sheldon Whitehouse (D-Rhode Island) observed one troubling pattern during Amy Coney Barrett’s bid to fill a vacant seat left by former Justice Ruth Bader Ginsburg’s death: “dark money” has captured the court, covertly eroding democratic processes to hand-select judges and win in big cases.
Forces that led Barrett to her nomination before the Senate Judiciary Committee, a hurdle even past superstars (like Robert Bork of the ‘Law & Economics’ revolution and Merrick Garland, who supervised the prosecution of the Oklahoma City bomber Tim McVeigh) have failed to clear, were analogized to a puppet theater. “And if you only look at the frame of a puppet theatre,” Whitehouse noted, “you’re not going to understand the full story. You’re not going to understand forces outside of the frame pulling strings, and pushing sticks, and causing the puppet theater to react.”
Whitehouse’s presentation brought to the fore the wild success that outside influences have in installing hyper-partisan, activist judges to the bench. He outlined the web of funding sources from identity-scrubbing organizations politically aligned with the stated policy goals of the Trump administration. From untraceable campaign financing to selecting judges, what follows are judges who become bought and paid for – where favorable opinions are delivered in exchange for popular sovereignty. A donor class willing and able to provide that financing, in turn, permits their intrusion on our political system, enabling powerful groups to count on justices as allies to invalidate decades of precedent once codified by statute.
Calls to override judicial supremacy grow louder as the Roberts era proves ruinous to equality and social progress regarding issues like climate change, marriage equality, and healthcare. Notwithstanding the long history of victories for corporate rights, the rollback of voter protections reauthorized by Congress, or evisceration of the independence of administrative agencies, the urgency to reform SCOTUS has only revived support among one major political constituency. The party gap concerning favorable views of the court have never been wider, and for the first time in history the court is facing under forty percent favorability (Gallup). Further, a Pew Research Poll shows a near historic low favorability of the Supreme Court, just over twenty percent lower than August of 2020 (Pew Research, 2025).
Reform agendas to end the perpetual transfer of power from Congress to an unaccountable court must materialize vis-à-vis new guidelines that prioritize transparency and actual judicial restraint. Provided that the political will exists, Congress has enough fire power to stay rampant corruption or bad conduct impacting the courts. Moving forward, it must legislate into existence a bold new platform for reshaping a Supreme Court that is quickly losing its credibility in the public eye.
Not unlike any other political institution, the Supreme Court is, in itself, also deeply political. It is built and sustained by those from different coalitions and tends to align itself with the preferences of whichever constituency holding a national political majority — making it an affront to the idea of independence post Marbury. But people are steadfastly losing faith in the Supreme Court to uphold the rule of law each time major decisions that consistently strike down precedent subvert the will of the electorate or the emergence of fair representation. Term limits, expanding and packing the court, and jurisdiction stripping are all available as remedies to generate a new future of prosperity that does not only apply to a select elite. It is up to Congress to rebalance the highest court in the land. The Court must be restored to one that upholds constitutional principles which protects fundamental human rights and substantive due process for everyone, not just for those with deep pockets and the most influence.
Tyler Clark is a J.D. candidate at UIC Law and a senior editor for the Decisive Utterance. He holds an M.S. in economics from the University of Utah and hopes to continue his research within the ‘Law & Political Economy’ field of legal thought.
The opinions and positions stated on this blog are those of the writers/contributors and not by the fact of publication those of The Chicago Bar Association or its members.