Dem
51
GOP
49
Joe Biden has now announced his plans to reform the out-of-control Supreme Court. They include constitutional amendments to declare that nobody is above the law, not even the president, term limits for justices, and a binding code of ethics for the justices. It is a bit late, though. When Democrats had control of Congress and he could have tried to make some progress on these things, Biden did nothing. It is clear this is just a political stunt and he doesn't really mean it.
Kamala Harris is going to ride Supreme Court reform for all it is worth as a campaign issue. However, it seems likely that if she wins, she will take it seriously and will try to do something about reforming the Court.
With a Democrat as president, the Republicans might be open to a constitutional amendment that said that presidents are not immune to prosecution, not during their term and not after. She could encourage the Republicans by mentioning some illegal acts she could take (like ordering Donald Trump put in prison without bothering with a trial) and without having to answer for them. It might have a chance.
Getting a term-limits amendment passed and ratified would probably be impossible. Republicans have a 6-3 majority on the Supreme Court now and hope to keep it for decades, although sometimes justices leave the Court involuntarily, as Antonin Scalia and Ruth Bader Ginsburg found out the hard way. Congress could pass a term-limits law, but the Supreme Court would surely shoot it down, citing the wording of the Constitution itself, which grants justices a lifetime appointment, assuming good behavior.
A law subjecting justices to the same code of ethics as federal judges would be doable if the Democrats get the trifecta and can manage to overcome a likely filibuster. Figuring out a serious enforcement mechanism is an open issue, however.
What if Harris can't do any of these things, or can only do the third one? Done? Then what? She might be open to other ways to rein the Court in. One of her top advisers is Brian Fallon, a leading exponent of expanding the Court. It has varied from 6 to 10 justices over time, and can be changed at any moment simply by having Congress pass a law dictating the size. Fallon would no doubt advise Harris that this is the moment for an expansion, and probably for an expansion of the lower courts as well.
Fallon formed a group called Demand Justice. Its chief counsel, Christopher Kang, said: "The thing we tried to instill at Demand Justice is that the courts are just not on the level anymore and are making decisions based on politics, not on law." To the extent that Fallon has Harris' ear and all the other methods fail, she might agree to support expanding the Court.
The other thing that Congress can do without a constitutional amendment is strip jurisdiction from the Court. The Constitution specifically gives Congress the power to limit the appellate jurisdiction. In the most extreme form, Congress could effectively nullify Marbury v. Madison by passing a law restricting the Supreme Court's appellate jurisdiction to, say, only cases in which someone had killed a hamster and the owner sued the killer for damages. Everything else is off the table. Since there is nothing in the Constitution about the Supreme Court having the power to throw out laws duly passed by Congress, a very broad restriction like the above would actually return the Court to its intended role, which was never to run the country. That was left to the political branches. Will Fallon push Harris on this? Very likely. Will she agree? She might. (V)