The Presidential Commission on the Supreme Court of the United States voted unanimously on Dec. 7 to send its report on Supreme Court reforms to President Joe Biden. The report takes a middle-line stance on all the reforms, but did note “bi-partisan support” for 18-year term limits.
The commission, made up of 34 legal scholars, former judges and attorneys, was created by an executive order in April to advise the president on modern debates around Supreme Court reform. Topics addressed in the report include the length of service and turnover of justices, membership and size of the court, case selection, rules and practices. The commission does not make any specific recommendations and leaves reform implementation to the executive and legislative branches.
The nearly 300-page report captures seven months of research and input from the public and legal experts, including six public meetings. The final report was supposed to be released in mid-November — about 180 days after the commission’s first public meeting in May — but the commissioners delayed its release for another month.
In the report, the commission details the context of its creation when “the nation has been engaged for some time in an intense and ongoing debate about the court’s composition, the direction of its jurisprudence and whether one political party or the other has breached norms that guide the process of confirming new justices.” While the confirmation of Supreme Court justices has historically drawn criticism, the report describes a “continuous cycle of escalation” since the Reagan administration.
Discussions on court reforms reignited during the Obama and Trump administrations. In March 2016, former President Barack Obama nominated Attorney General Merrick Garland to fill a vacancy created by the death of Associate Justice Antonin Scalia. Citing that 2016 was an election year, Republican leaders in the Senate refused to consider any nominees until a new president was elected. Former President Donald Trump appointed three of the nine current justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — cementing a 6-3 conservative majority. Justice Barrett’s confirmation on Oct. 26, 2020 was also during an election year.
Based on a survey of former Senate staffers, the commission expressed there was “broad bipartisan agreement that the confirmation process has come under severe strain from partisan conflict,” but Republican and Democrat staffers disagreed on the underlying causes of the conflict.
One of the most hotly-debated Supreme Court reforms is adding justices, also called “court packing.” Despite being one of the more controversial topics addressed, the commission stated it “do[es] not seek to evaluate or judge the weight of any of these arguments,” adding that it “takes no position on the wisdom of expansion.” The report noted that, like the general public, “there is profound disagreement among commissioners on this issue.” The commission recognized that Congress can legally change the size of the Supreme Court and did so multiple times between 1789 and 1869 for political and institutional reasons.
In the past year, numerous lawmakers proposed capping or expanding the number of justices on the court, with the efforts falling overwhelmingly along party lines. Former Colorado Attorney General Gale Norton announced her support of a proposed constitutional amendment, supported by almost entirely Republican lawmakers, capping the number of justices at nine. Conversely, Democratic lawmakers introduced legislation to add four additional justices to the court in April.
The largest driver for adding justices, the report explains, was the upheaval of nomination norms by Republican Senate leaders in 2016 when they refused to consider Attorney General Garland. The commission noted that advocates for expanding the court see it as necessary to align the court better with the American public, “prevent the continued undermining of our democratic system,” diversify the court and allow it to hear more cases each year.
Arguments to cap the number of justices vary. Some against expanding the court argue that its current composition is an accurate reflection of electoral processes, others say that doing so would threaten the independence of the court and still other opponents believe expanding the court would undermine the constitutional or democratic systems.
The commission notes that another proposed court reform — a rotation or panel system to dilute the influence of any one justice on the court — could face a handful of legal challenges from Article III, Section 1 of the Constitution. The report doesn’t rule out the reforms as illegal, but does note that the “good behaviour clause” and language of the Article III, Section 1 could make implementing the reforms tricky.
Another proposed reform, non-renewable, 18-year term limits, has received bipartisan support, the report notes. Proponents of term limits, which the commission said includes conservative and liberal Supreme Court practitioners and constitutional scholars, argue it would create a regular system of court appointments and ensure the court represented the outcomes of elections over time.
Opponents of term limits believe they would impact judicial independence and legitimacy. The commission cautioned against implementing any term limits using a statute rather than a constitutional amendment, noting that “if Congress has the power to change the composition of the court by statute, it could mean that Congress has considerable flexibility in altering the duties of the justices in other ways.”
A final reform addressed by the report is decreasing the influence of the Supreme Court in the government which proponents say is “an obstacle to the realization of important social goals and undermined the ability of Congress and other political actors to protect rights.” The commission pointed out that the concept of judicial supremacy is not baked into the constitution and gained popularity in the 1950s. Reforms to dilute the power of the Supreme Court are vastly different and include suggestions like imposing jurisdiction limits, supermajority vote requirements and creating processes for congressional override of decisions. Critics of these reforms point out that disempowering the courts could undermine protected rights, could create poorly reasoned laws or undermine the court’s role in the rule of law and democracy.
Procedures and Practices Debates
The final chapter of the report looked at three court practices and procedures that have drawn criticism historically and recently — the use of emergency orders, judicial ethics and public access to proceedings.
The commission notes that recent emergency orders, which affected many Americans, drew scrutiny of the court and its practices. “Although emergency orders technically are temporary and used in service of further adjudication, they often have the practical effect of being the final word on the issue,” the commissioners noted. The report points out that when the Supreme Court issues emergency orders, it’s based on limited briefing without oral arguments and doesn’t give a detailed opinion explaining the court’s reasoning or split. Possible solutions to controversy around the use of emergency orders include providing reasons for the decision, clarifying the precedential weight of the order, using regular adherence to existing norms of deference and reducing the number of nationwide or other defendant-oriented injunctions.
The report also considers creating a code of conduct for the justices, similar to those at lower federal courts. A code of conduct would show the court’s dedication to an ethical culture over time and could include periodic training for the justices. To adopt this reform, the Supreme Court would need to create a code of conduct internally, or Congress would impose one.
Running parallel to the code of conduct, the commission considered the implementation of a judicial discipline framework like those applied to lower courts. These could include procedures to recognize lower-than-impeachment level misconduct, to impose internal discipline and to create a formal and transparent recusal process.
For two terms since COVID-19, the Supreme Court has allowed live-streamed audio of its oral arguments which has opened questions about further public access to proceedings. Livestreaming the proceedings has cut down on long lines of the general public that would queue up in hopes of getting a seat in court. While opponents say live-streaming prevents the court from fixing minor mistakes during oral argument, the impact of the mistakes has been minimal. The commission reports that livestreaming has allowed for members of the public and the bar to follow the court and notes that “perhaps further experience with simultaneous audio will encourage the Court to try cameras as well.”