Can a $30 Million Bet on Supreme Court Reform Rise Above Partisan Divides?

As President Biden announces his intent to tackle Supreme Court reform in the coming months, a new $30 million initiative is aiming to lay the intellectual groundwork for another philanthropic effort to influence the nation’s highest court.

Last week, NYU’s Brennan Center for Justice launched the Kohlberg Center on the U.S. Supreme Court, fueled by a $30 million gift from private-equity investor and philanthropist Jim Kohlberg and designed to research and advocate for reforms such as term limits for justices and a stronger code of ethics.

The donation comes on the heels of decades of successful conservative legal philanthropy — including a record-breaking $1.6 billion gift last year alone — that has transformed the federal judiciary and, according to legal scholars, spurred contentious rulings on issues like abortion rights and presidential immunity. As philanthropists on both sides pour millions into Court-related advocacy, the new center aims to harness widespread public discontent across party lines — and will test whether judiciary reforms can ride above the political fray or just widen it.

“We all have an interest in making sure that we have a strong and independent Supreme Court that is not consumed by politics,” said Michael Waldman, president of the Brennan Center for Justice, who emphasized that the majority of both Democrats and Republicans support the idea of term or age limits for justices.

While “people have been yelling about the Supreme Court forever” in response to rulings they disagree with, what’s different about the calls for reform is they’re not a condemnation of any singular decision but a critique of the structure of the court itself, said Waldman. He hopes that with enough public momentum, legislative reform could follow.

“We always say that the most important court to win, if you want legal change or policy change, is the court of public opinion,” he said.

Though the Brennan Center plans to pursue its judicial advocacy with a nonpartisan lens, the path to reform won’t be easy. Many legal scholars argue that imposing term limits would require a constitutional amendment, a process that demands supermajority support in both houses of Congress and ratification by three-fourths of state legislatures.

“If there was the political will to do that, then we wouldn’t have so much tension and controversy surrounding the court in the first place,” said Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute, a conservative think tank, and a frequent lecturer on behalf of the Federalist Society.

While Shapiro disputed the idea that the Supreme Court truly needed reform, he said that term or age limits could help improve public confidence in the court. But, depending on the outcomes of the elections in November and the likelihood of more politically contentious cases to come, he doesn’t expect to see an amendment on reform passed anytime soon.

“I think that would be broadly popular among the American people,” he said. “Whether it would gain a supermajority in Congress is another question.”

Reforming the Court

The Kohlberg Center’s research priorities align closely with two that President Biden unveiled July 29 in a speech calling for major reforms, including 18-year term limits that would allow for two judicial appointments per presidential term and a strong and enforceable code of conduct for justices.

Public trust in the judiciary used to come from the perception that it was “above the political fray,” said Cristina Rodríguez, a Yale Law School professor who co-chaired a bipartisan commission formed by President Biden to study potential changes to the court in 2022. Yet, that positive perception of the judiciary has deteriorated in recent years at the fastest rate of any branch of government, driven by politically charged nomination procedures and controversial judgments, she said.

In decades past, “there has been a center to the court” defined by moderates such as Justices William Kennedy, Sandra Day O’Connor, or Lewis Powell, Rodriguez said. Now “the sense is that kind of cross-ideological coalition building is happening less.”

Though Rodríguez doesn’t expect to see transformative change to the Supreme Court in the near future, she said Biden’s endorsement “bolsters the case” for reform and helps keep it part of mainstream conversations about what’s possible.

While lifetime appointments were originally intended to insulate justices from political pressures or competing interests, rising life expectancy brings increased concern about longer tenures, intensifying the stakes of any single nomination. In other democracies, high court justices typically serve for about five to 15 years, capped by term limits or mandatory retirement. Since the 1970s, the average judiciary tenure in the U.S. has risen from 15 to 27 years.

“If we can’t have an 81-year-old president, there’s no reason we should have 85-year-old justices,” said Kohlberg, the donor behind the Brennan Center’s new think tank and chairman and co-founder of the private equity firm Kohlberg & Co. A self-described moderate who has voted for Democrats and Republicans in the past, Kohlberg was dismayed by a succession of “hypocritical and partisan” rulings, beginning with Citizens United in 2010 — which ruled that political spending is a form of protected speech, enabling corporations and others to spend unlimited funds on elections — and culminating with last month’s decision on presidential immunity.

Recent ethics controversies, including Justice Clarence Thomas’s undisclosed gifts from billionaire conservative philanthropist Harlan Crow and refusal to recuse himself from Jan. 6-related cases, also led Kohlberg to give his largest gift ever. The $30 million was his first to the Brennan Center, which previously received over $19 million from Kohlberg’s parents Nancy and Jerome Kohlberg, cofounder of the private equity firm KKR & Co., through their foundation.

Asymmetric Philanthropy

While “everybody’s entitled to suggest candidates for the Supreme Court,” said Les Fagan, a member of the board of directors at the Brennan Center and a trustee at the Kohlberg Foundation, the outsized impact of conservative philanthropy in the Supreme Court has made its political influence particularly alarming.

“Money is power,” he said, and “there is a staggering amount of money in these conservative organizations.”

The Federalist Society for Law and Public Policy Studies is a network of conservative lawyers, whose recommended nominees and conservative ideals now dominate parts of the federal judiciary. Nearly 90 percent of Donald Trump’s appointments to appellate courts are or were members, as are six of the nine current Supreme Court justices. The conservative and libertarian legal organization has chapters at 200 law schools and features student, lawyer, and faculty divisions; the network comprises over 65,000 practicing attorneys in 90 cities, who support a textualist and originalist interpretation of the U.S. Constitution.

Since its founding as a nonprofit in 1982 at the University of Chicago, the Federal Society has been fueled by a massive trove of conservative philanthropy — hundreds of millions, if not billions of dollars. Its assets totaled $42.7 million as of 2022.

“There’s been a real asymmetry in philanthropy on the issue of the Supreme Court,” said Kohlberg, citing what he regards as the Federalist Society’s “fundamentally corrupting influence” on the court in recent decades.

In recent years, there have also been liberal efforts to reform the Court, but they are typically younger and less centralized than the Federalist Society’s. The American Constitution Society, a progressive legal nonprofit, has supported liberal nominees and ideals in the court system, but not at the scale of the Federalist Society. Demand Justice, a progressive legal advocacy group born out of the Sixteen Thirty Fund, a nonprofit client of Arabella Advisors, has likewise backed progressive ideals and structural reforms to the Court.

“There has been a massive, well-funded, highly organized drive to get the Supreme Court to where it is right now, as an institution that has lost the trust of the country,” Kohlberg said. “There has not been remotely as much investment on the side of those who want to see the court rebalanced and more accountable.”

Progressive and reform-minded legal advocates and philanthropists have been asleep at the wheel, Kohlberg said, with no liberal counterpart with comparable influence to the Federalist Society. However, Kohlberg said he doesn’t intend to build one with his donation. Instead, he hopes more funders will turn their attention to finding structural solutions to the status quo.

“Get out your checkbook — that’s what we need,” he said. “The conservative movement has done that for 25 years and we haven’t kept up. That’s why we’re in this situation.”

Is Nonpartisan Reform Possible?

Few of those conservative politicians, institutions, and philanthropists are eager to lose their hard-fought influence in the judiciary, and many conservatives dismiss the assertion that the current court has a uniquely partisan tilt or trust issues to begin with.

Despite historic declines, the judiciary still maintains higher levels of public trust than other federal institutions, such as the executive branch or the U.S. Congress.

“The court is not in crisis; what’s in crisis is public confidence in institutions more broadly,” said Shapiro of the Manhattan Institute. Still, he acknowledged that “if we were designing a court from scratch, then it would probably be a good thing to have” term limits, if only to appease the public and avoid “accidents of history” where one administration makes an inordinate number of appointments.

Yet any attempts at such reform now could easily result in a kind of political tit-for-tat that would do little to soften the judiciary’s perceived partisanship, he said, especially when most of those advocating for reform are expressly frustrated with the court’s conservative direction.

“It’s hard to get from here to there when nobody trusts the other side to do anything other than try to gain short-term advantage,” he said.