Yesterday the President’s Commission on the Supreme Court published “discussion materials”. These covered a wide range of issues including term limits and court-packing for Supreme Court justices. These preliminary reports do not contain any recommendations. They do however provide an insight into the perspectives of Commission members.
Based on the composition of the Commission, I predicted that the reports were generally skeptical about court-packing but supportive of the concept term limits. Biden wouldn’t have had so many court packing skeptics in his Commission, as some conservatives believed. He’d rather have packed the Commission in packers.
This report on court-packing gives a comprehensive overview of both the arguments and the various suggestions to modify or increase the Court’s composition. Although it acknowledges the fact that there are some commission members who support packing in order to compensate for what they consider to be illegitimate Republican manipulations of Supreme Court nomination processes, the predominant tone of the report is one of skepticism.
The report emphasizes that even many of those Commissioners who strongly dislike the current composition of the Court believe that court-packing “is likely to undermine, rather than enhance, the Supreme Court’s legitimacy … and there are significant reasons to be skeptical that expansion would serve democratic values.”
It isn’t the only one who interprets the report this way. Both liberal and conservative commentators have taken a similar view of it, and the report’s skeptical view of “court expansion” has already attracted the ire of court-packing advocates. In fairness, at least one member of the Commission—Volokh Conspiracy co-blogger Will Baude—has criticized the draft for not being negative enough about court-packing. The idea would be a better choice for me. The report’s moderate approach to the issue is enough to stop court-packing advocates from gaining momentum. It also points out that many progressive legal scholars think such proposals could be dangerously misdirected.
The Court’s declining popularity in recent months provides a possibility window for court-packing supporters (though I did emphasize that Democrats won’t be able to make the most of this opportunity and that isn’t clear whether they actually want to). This potential flame is not lit by the Commission’s preliminary report. It serves more to put cold water on it.
The draft report about term limits, however, is far more encouraging. This report highlights the broad bipartisan support of the idea by academics, jurists, etc., as well as the many ways that an 18 year term limit can be used to solve a variety of problems. This proposal is supported by a wider audience than any other one considered by the Commission, as well as being supported in a way that’s right for them.
I also support term limits and I appreciate the fact that the report seems to endorse the idea. It is clear that the Commissioners disagree on whether term limit legislation can be done by statute or constitutional amendment. A constitutional amendment is required. Allowing Congress to make it by statute would create a dangerous precedent. The report on term limits also contains insightful discussion of organizational issues to be considered in order to put into effect term limits. This includes how to transition to a term-limit system, how to avoid conflicts of interests and what to do about justices wanting to explore other careers after their Court departure.
Although it has attracted less attention than the court–packing and term limits reports, the Commission has also issued a report on other proposals to limit the Supreme Court’s power, most notably jurisdiction-stripping and legislative override of Supreme Court decisions. I believe the latter is just as radical an idea as court-packing to eliminate the Court.
The report offers a balanced analysis of the ongoing debate about the limitations of Congress’ power to deprive courts of certain types of case jurisdiction. Significantly, the Commission members seem most skeptical of the more radical jurisdiction-stripping proposals, that would deny jurisdiction over some types of cases to all federal courts, as opposed to merely channeling those cases to one court instead of another. Even more skeptical are proposals to deprive state and federal courts of jurisdiction.
With regards to legislative override, the report strikes me as more skeptical than about jurisdiction-stripping. It suggests that any such proposals may well be unconstitutional, and—if enacted—would likely be invalidated by the courts, thereby potentially producing a constitutional crisis.
Christopher Jon Sprigman, NYU Law Professor interprets the report as much more favorable to jurisdiction-stripping and legislative overrideYou know more than me. It is up to the readers to decide which side is right. Maybe both of us have been influenced by past experiences (he supports the ideas while I don’t). However, I believe it is difficult to argue the report supports more radical ideas. They are repeatedly criticized as being unconstitutional, and may lead to confrontations between Congress and the judiciary.
It is worth noting that the US Notwithstanding Clause has also been used by progressives. The most important invocations of the Notwithstanding Clause have been to protect from judicial review Quebec discriminatory legislation that targets religious minorities and languages. Perhaps the Canadian legislators, as well as our federal and state representatives are less educated. But progressives inclined to take comfort in such thoughts should consider whether they feel that way about Republican-controlled Congresses and state governments.
The Commission finally released a report on Court rules regarding case selection and other procedural matters. This report addresses issues like reforming the “shadow docket”, proposals for an ethical code of conduct for Supreme Court justices, as well as camera use in court. The rest of the discussion will be left to experts who are more knowledgeable on these issues. This report does not advocate radical or highly problematic reforms, but that is my initial assessment. It seems to suggest that cameras at the Court wouldn’t be an issue, and that oral arguments should still be livestreamed by the Court.
Scholars and those interested in their subjects will find the four reports valuable. The report’s excellent work of summarizing and reviewing the evidence and supporting various reform ideas makes them invaluable resources. While this will be a delight for legal professionals and others, it is not enough to satisfy anyone looking forward to radical reform.
Although I believe the term limits report will generate some momentum, it won’t be simple to pass the constitutional amendment. While the other reports can be useful for professionals, they are unlikely to have much impact on public discussion.
The final Commission report, which may include reform recommendations, could take different positions than these initial documents. However, it seems unlikely at this stage. However, time will reveal!