Discussions of the federal judiciary often focus on the substance of decisions made—which side wins and which side loses—and rightly so. These individual opinions are frequently of incredible importance, not just to the parties involved but in shaping the law more broadly. Yet this focus on substantive decisions has obscured deeper structural factors at play in the nation’s federal judiciary. Structural problems—such as lack of judicial diversity, ideologue judges, and lack of judicial accountability—undercut the courts’ legitimacy and have tangible negative effects on judicial decision-making. Instead of protecting everyday Americans by serving as a check on abuses of power, too often the federal courts have become a tool for carrying out the agendas of special interests and corporations.

Structural problems with the judiciary have always existed to varying degrees. But they have been exacerbated in recent years due to an ongoing campaign by conservatives to take control of the federal courts, often through procedural changes that have significant effects but garner little public attention. The problem has now reached a crisis point. Conservatives have shown a willingness to abandon any and all norms to undermine the judicial nominations process and pack the courts with judges who will help them realize political goals they cannot achieve through the political process. These judges have proven more than willing to carry out the task, supporting the most specious of legal claims in order to skew the system in favor of conservative interests and even prevent many Americans from accessing the courts at all.

Progressives need to consider policies to combat the ideological bias of the courts. This report outlines the current problems in the federal judiciary and then discusses two types of structural reform: changing the composition and authority of the courts and changing the rules that dictate who has access to them.

Discussions about changing the composition and authority of the courts have garnered greater attention recently as a result of conservative efforts to pack the courts. Some proposals have been debated for a considerable amount of time, such as term limits for judges and justices. Others are newer additions that have arisen as the legal community grapples with the reality of conservative norm-breaking, such as altering the structure of the Supreme Court.

At this point, the most important step is to move past the question of whether to consider significant reforms and begin discussing their relative merits. To that end, this report does not seek to identify a specific preferred policy solution. Instead, it discusses the strengths and weaknesses of a number of proposals, including changing the structure of the Supreme Court by adding justices or creating a rotating panel of justices; reducing the influence of ideologue judges through proposals such as term limits; and changes to improve judicial accountability.

The report next addresses how to eliminate judicial and legislative roadblocks that curtail access to justice for society’s most vulnerable and rig the system in favor of the wealthy and powerful. Here, the policy discussions have already been ongoing for a number of years. The report outlines specific steps policymakers can take to restore plaintiffs’ ability to bring class action suits, limit forced arbitration, restrict the abuse of secret settlements and record sealing; expand the ability of private entities to bring suits to enforce federal law; and restore simpler pleading standards.

The structural reform proposals detailed in this report are not exhaustive; but they would take substantial steps to address some of the serious problems in the judiciary. As important as the reforms themselves, policymakers must recognize the urgent need for bold structural changes to the judiciary. 

There is growing recognition of the need to reform the U.S. judicial system, including the Supreme Court. Scholars, judges, and even some 2020 presidential candidates have suggested everything from expanding the number of judges who sit on the federal bench to imposing term limits on judges.¹ The serious consideration being given to these judicial reform proposals reflects deep concerns about the institution and a recognition that reform is needed.

In part, these issues are the result of long-standing problems in the judiciary, which has historically favored the interests of the rich and powerful over society’s most vulnerable. For example, in the 1800s, the Supreme Court benefited white landowners and businesspeople by ruling that African Americans were not American citizens and by upholding “separate but equal” racial segregation and discrimination.² Between 1905 and 1918, the Supreme Court struck down important labor laws, including those establishing humane work hours and banning child labor.³ Later, it upheld a Virginia law permitting the sterilization of people with disabilities, the criminalization of same-sex relationships, the internment of Japanese Americans, and severe penal punishments targeting people of color.⁴ More recently, the Supreme Court sided with powerful corporations by prohibiting workers and consumers from bringing class action lawsuits and by allowing the wealthy to drown out the voices of everyday Americans through corporate dark money contributions.⁵

To be sure, there have been brief periods during which the Supreme Court has robustly protected the American people—including those who are most vulnerable—notably under the leadership of former Chief Justice Earl Warren.⁶ Looking at the entirety of American history, however, the court has more frequently served to check social progress rather than advance it.

Unreflective judges lead to out-of-touch judgments

The courts’ favoritism toward wealthy, often white, Americans and its hostility toward the interests of underrepresented groups is, at least in part, a product of the judiciary’s very makeup. The federal bench has long been dominated by white male elites. The first African American was not appointed to the Supreme Court until 1967, and the first woman was not appointed until 1981.⁷ While diversity on the lower federal courts has improved substantially, the Supreme Court remains a particularly unrepresentative institution; it currently has only two people of color—22 percent—and three women, 33 percent.⁸ Moreover, justices on the highest court are significantly older than the general populace, with most between the ages of 64 and 86 years old.⁹ Compared with the rest of the United States, the Supreme Court is exceptionally nondiverse.

There is of course a difference between descriptive and substantive representation.¹⁰ Descriptive representation is when an institution physically resembles the population it has authority over, while substantive representation involves acting in a constituency’s substantive interests. Certainly, some Supreme Court justices and federal judges have been fierce advocates for the rights of people of color, women, and the LGBTQ community even though they did not personally identify with those groups.

That said, having individuals in power who look like or share characteristics with the broader U.S. population furthers the perceived legitimacy of the courts and their decisions. As recognized by Daniel Goldberg, the legal director at the Alliance for Justice: “In an increasingly diverse country, citizens have a right to walk into a courtroom and see judges who are deciding life-and-death issues that look like them.”¹¹

Moreover, ethnic and gender diversity on the bench has been shown to positively impact decision-making. As described by Judge Harry Edwards of the U.S. Court of Appeals for the District of Columbia Circuit, it is “inevitable that judges’ different professional and life experiences have some bearing on how they confront various problems that come before them.”¹²

Studies show that female judges on federal appellate courts are more likely to rule in favor of plaintiffs in sexual harassment and discrimination cases than male judges.¹³ Similarly, black judges are more likely to rule in favor of affirmative action programs than their nonblack counterparts.¹⁴ The mere presence of female and black judges on federal appellate courts can positively impact decisions made by other judges in certain cases.¹⁵ One study found that having at least one female judge on an appellate court panel more than doubles the likelihood that male judges will find for plaintiffs in sexual harassment cases.¹⁶ And in sex discrimination cases, the presence of a female judge triples the likelihood that male judges will find for plaintiffs.¹⁷ Regarding racial diversity, a study found that the presence of a black judge on an appellate panel increases the likelihood that a nonblack judge will rule in favor of an affirmative action program by roughly 20 percent.¹⁸ Another study found that the presence of at least one African American judge on an appellate panel increases the likelihood that white judges will find for plaintiffs in cases involving violations of Section 2 of the Voting Right Act.¹⁹

Racial, ethnic, and gender diversity have improved on the lower courts in recent years, particularly under the Obama administration, but that trend is retrograding. Of the active federal judges appointed so far under the Trump administration, more than 80 percent are white, while more than 70 percent are men.²⁰

Adding to the Supreme Court’s representation issue, eight of its nine justices graduated from either Harvard or Yale Law School.²¹ Justice Ruth Bader Ginsburg began her legal studies at Harvard before graduating from the equally prestigious Columbia University.²² Moreover, most of the justices are millionaires who followed almost identical paths to their current post, such as clerking at the Supreme Court and working at prestigious law firms or within administrations before being appointed to a lower federal court.²³ The median net worth of Supreme Court justices in 2017 was estimated at roughly $1.9 million, compared with $97,300 for all U.S. families.²⁴

The judiciary’s elitism fosters a culture of favoritism that determines who has access to the courts. A 2014 Reuters investigation found that from 2004 to 2012, a group of 66 elite attorneys were six times more likely to have their cases heard by the Supreme Court than all other attorneys who filed cases before the court. Of those 66 lawyers, 63 were white and only eight were women.²⁵ Many of these attorneys worked on behalf of corporate interests and had personal or professional connections to the justices.²⁶ According to the Reuters report, this show of favoritism fosters “a decided advantage for corporate America, and a growing insularity at the court.”²⁷

The increasingly partisan nature of U.S. courts

Lack of diversity is only part of the explanation for bias in the judiciary. Partisan manipulation has also played a definitive role in creating an institution designed to protect the economic interests of the rich and powerful over everyone else. Reforms to fix the broken judicial system are often rebuked as attempts to politicize the courts. Yet conservatives have been working for decades to turn the federal judiciary into a partisan tool to achieve conservative ends. Their efforts, while largely successful in accomplishing their goals, have severely undermined the proper role of the courts.

While conservatives have long made the appointment of judges who share their rigid ideology a primary political goal, their efforts to control the judiciary have accelerated in recent times. The most striking example has been a robust conservative court packing scheme that has played out in the Senate since 2014.

First, under the leadership of conservative Sen. Mitch McConnell (R-KY), the Senate majority stole judicial seats by delaying and denying confirmation of judges nominated by then-President Barack Obama. The most egregious example came in 2016 with the refusal to even consider the nomination of Judge Merrick Garland for the Supreme Court. Just 10 days after Justice Antonin Scalia’s death in February 2016—before President Obama had even named Garland as a possible replacement—McConnell and his fellow Senate Republicans declared that they would not consider any nominee made by the Obama White House.³⁶ The Garland incident was only the tip of the iceberg, however: Over the course of Obama’s final two years in office, lawmakers confirmed fewer judges than at any other time of divided government in the past half-century.³⁷

Next, the Senate majority used a whole host of tricks to quickly fill judicial seats with extreme ideologues once President Trump took office in January 2017. The Senate rejected its own procedures and precedent by abandoning what is termed the “blue slip” process that gave home-state senators a say in judicial nominations and by allowing Supreme Court justices to be appointed along strict partisan lines. Under McConnell’s leadership, Senate Republicans even went so far as to hold confirmation hearings during Senate recesses.³⁸

As illustrated by Figure 2, the strategy worked. While Obama saw his appointment power virtually nullified by McConnell and his Senate allies, Trump has been able to ram through a slew of controversial judges. Of the more than 110 federal seats left open by conservative lawmakers while Obama was in office, more than 80 percent have already been filled by Trump during his first two years in office.³⁹ Trump has confirmed more circuit judges than any other administration in recent memory.⁴⁰

In making an end run around the normal judicial confirmation process, conservative lawmakers have overlooked nominees’ questionable writings and statements on women, race, and LGBTQ rights, as well as lack of legal experience.⁴¹ Although grassroots campaigns have succeeded in keeping some of the most controversial nominees off the federal bench, a number of unqualified judges have been pushed through.⁴² And these Trump appointees, according to USA Today reporter Richard Wolf, already “are having an impact on issues ranging from civil rights and campaign spending to public prayer and the death penalty.”⁴³

Conservatives’ efforts to shape the courts have been hugely effective for them. Since Chief Justice Roberts was appointed in 2005, 92 percent of the Supreme Court’s conservative bloc’s 5-4 decisions have benefited conservative and corporate interests.⁴⁴ These cases restricted voting rights, empowered the corporate takeover of federal elections, and weakened protections for unions and workers.⁴⁵

In addition to substantive rulings that benefit conservative special interests, federal judges and conservative policymakers have created procedural rules that actively prevent certain groups from gaining access to courts in the first place, such as limiting plaintiffs’ ability to bring class action lawsuits and expanding the reach of forced arbitration. These decisions have had tangible effects on people’s lives—particularly low-income people and communities of color—and make it virtually impossible for ordinary citizens to hold corporations and corrupt government officials accountable.

Fixing the problems in U.S. courts through structural reform

The problems in the federal court system go beyond specific substantive rulings; they are structural. The courts have been packed with conservative judges, and those judges are making it harder and harder for vulnerable people to realize their rights through the judicial system. These structural problems necessitate structural solutions.

The first step is to reduce bias on the courts. One way to address the issue starts with the type of people nominated and confirmed to be federal judges. To be sure, judges are not and cannot be wholly impartial. They are human and, like all people, have biases that affect their decision-making. But efforts can be made to ensure that judges have a broader range of lived experiences so that they do not systemically skew their decisions to the detriment of the less powerful. To that end, progressives should focus on nominating and confirming fair-minded judges with diverse backgrounds, rather than narrow-minded conservative elitists.

Given the breadth of the problem, however, policymakers also need to consider more far-reaching approaches, such as undoing conservative court packing, reducing the influence of partisan judges, and ensuring greater judicial accountability.

In addition, efforts must be taken to ensure that the federal judiciary works for more than merely corporations and the wealthiest few. All Americans deserve a fair chance to bring their claims before federal courts, regardless of net worth or insider connections. Barriers to justice—such as forced arbitration, arbitrary pleading standards, and other obstacles—must be eliminated. Restoring access to the courts is necessary to address corporate abuse and government wrongdoing, as well as to fully realize civil and economic rights.

Reforming the makeup of federal courts and improving access to justice are important and mutually dependent goals. For instance, restoring Americans’ ability to access federal courts through class action lawsuits or private rights of action is all for naught if those cases are not being overseen by fair and impartial judges. Similarly, ensuring that federal courts are fair makes little difference if people are kept from having their cases heard. By implementing reforms in both areas—altering the makeup of the federal bench and improving access to the courts—the judicial system can be rebuilt and justice can be restored.

Restoring fair-mindedness to the federal judiciary

As partisanship has deepened and conservative court packing has picked up steam, reformers have responded by putting forth numerous recommendations for addressing these issues. Proposals have run the gamut from imposing term limits on federal judges and Supreme Court justices to changing the structure of the court itself. To date, most of the debate has focused on whether significant reform is needed or wise. But to have a truly informed discussion, policymakers need a more detailed understanding of available options so that they can evaluate their strengths and weaknesses—and the extent to which suggested proposals are properly responsive to the problem at hand.

In evaluating structural reforms to the Supreme Court and the federal judiciary, several factors should be considered. To the greatest extent possible, reforms should discourage future norm-breaking, such as stealing judicial seats by effectively nullifying a president’s appointment authority. Norm-breaking is discouraged by undoing its beneficial effects for the norm-breakers; if the beneficial effects are allowed to stand, lawmakers will continue to ignore legal and procedural norms when it suits them, without fear of repercussion. For instance, judicial reform proposals that accept the current packed Supreme Court as a baseline encourage further norm-breaking. Moreover, proposals that make it harder to overturn precedents established by the packed court do the same.

Another important factor to consider is whether a specific proposal is likely to increase or decrease politicization of the Supreme Court, either because it creates more moderating influences on the court or because the influence of individual partisan justices is reduced. Moreover, proposals should be evaluated as to the extent they would be stable over time. This includes assessing the risk that a proposal would result in escalating policy responses from those opposed to it and the likelihood that any attempted escalating response would be successful within a reasonable time period. Policymakers should also be attentive to the extent that the success of a proposal relies on adherence to norms, given the lack of such adherence in recent times.

Finally, in light of the difficulty of passing a constitutional amendment—which requires a level of support that is unrealistic in today’s hyperpartisan political climate—proposals must be evaluated on their constitutionality if enacted via statute.

When it comes to the various options for restoring fair-mindedness to the judiciary, the authors evaluate the following proposals:

• Changing the structure of the Supreme Court by:
  • Creating a Supreme Court comprised of a rotating panel of justices
  • Creating an ideologically split Supreme Court
  • Addressing conservative court packing by adding justices to the Supreme Court 

• Curbing the influence of ideologue judges by:
  • Establishing term limits for federal judges and Supreme Court justices
  • Creating an independent commission for recommending federal judicial nominees
  • Limiting Supreme Court jurisdiction
• Strengthening judicial accountability by:
  • Expanding judicial ethics requirements and extending them to Supreme Court justices
  • Creating a panel responsible for enforcing recusals and other ethics requirements

Creating a Supreme Court comprised of a rotating panel of justices from the appellate courts

In responding to concerns over individual justices’ immense power and the bias of the current Supreme Court, one approach is to create a Supreme Court made up of a rotating panel of justices—including judges from lower federal courts—responsible for hearing cases.⁴⁶ Under this proposal, every Court of Appeals judge would also be an associate justice of the Supreme Court. A panel would be chosen at random from among the pool of al