Legal scholar reveals how to get Supreme Court back in line using 'fear'

The Supreme Court has left a trail of legal "wreckage" over the course of its last few terms, but according to one legal scholar writing for The Hill, a "fundamental" fix to get them back in line will be making them "fear" again.

Paul M. Collins Jr. is a professor of Legal Studies and Political Science at the University of Massachusetts Amherst who has written extensively about the Supreme Court and the issues pervading it. On Friday, The Hill published his latest piece, digging into the current situation surrounding it, with accusations of rampant political bias and disregard for clear legal precedents in order to aid President Donald Trump.

"In a few weeks, the Supreme Court will end its term, leaving behind a trail of legal wreckage that has become all too familiar since the emergence of its conservative supermajority in 2020," Collins wrote. "Although the headlines will focus on the specific casualties — most notably a crushing blow to the Voting Rights Act — the real story of this term is not what the court did, but why it felt so comfortable doing it. We are witnessing the solidification of a sovereign court: an institution that has effectively decoupled itself from the traditional gravity of American checks and balances."

It was not always like this, he noted, explaining that the court once operated with a "healthy, if unspoken, anxiety," which he dubbed, "the fear of reversal."

"This fear once acted as a structural brake, reminding the justices that if they strayed too far from the constitutional mainstream, the system would push back," he wrote. "For instance, the 11th, 13th, 14th, 16th and 26th Amendments to the Constitution were passed to overturn Supreme Court decisions. Congress has reversed several decisions by passing statutes as well, as exemplified in the passage of the Lilly Ledbetter Fair Pay Act in 2009. And the Supreme Court occasionally overrules itself, including overturning Bowers v. Hardwick, which allowed states to criminalize same-sex sexual relations, in 2003."

Now, however, the "era of hyper polarization" has created a status quo where Congress is barely ever able to pass anything due to the radically different priorities on each side of the aisle. In this environment, the odds are vanishingly slim that Congress would be able to pass a bill rebuking the Supreme Court, let alone a new constitutional amendment, and as Collins noted, the court itself is expected to retain a conservative majority for decades if it is not expanded, meaning that future iterations of it also will not be likely to reverse past decisions.

"To restore the court’s legitimacy, we must do more than simply add seats; we must change the fundamental math of judicial power," Collins argued. "The goal should be to reintroduce the very thing the conservative supermajority has lost: the possibility of being corrected. The most effective way to achieve this is a two-pronged structural reset. First, Congress should exercise its clear constitutional authority to expand the size of the court. Second, and more crucially, the justices should no longer sit as a permanent, monolithic body of nine. Instead, they should be required to hear cases in randomly assigned three-judge panels with final decision-making authority."

He concluded: "Ultimately, instilling a fear of reversal is an act of institutional humility. With public confidence at a historic low, we can no longer afford a court that is always right simply because it is final. We need a court that is final only when it is right."

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