Biden Supreme Court Commission Releases ‘Discussion Papers’ on Court Records, Time Limits, Other Issues – Reason.com
Yesterday, President Biden’s commission on the Supreme Court released “discussion papers” covering a variety of issues, including the composition of the courts and the term limits for Supreme Court justices. These are preliminary reports and do not include actual recommendations. But they provide a useful window into the views of Commission members.
As I and others have predicted based on the composition of the Commission, reports are generally skeptical of court congestion, but supportive of the idea of term limits. If, as some conservatives feared, Biden wanted the Commission to produce a tribunal-packing approval in order to generate political momentum for the idea, he would not have included so many tribunal-packing skeptics among the members. He would rather have packed the Commission with packers!
The report dealing with the accumulation of courts provides a detailed overview of the arguments for and against the idea, and various proposals to increase or change the composition of the Court. Although he notes that some members of the Commission favor the packaging as a way to compensate for what they see as illegitimate Republican manipulation of the Supreme Court nomination process, the dominant tone is one of skepticism.
The report points out that even many of those Commissioners who dislike the current composition of the Court at all believe that the accumulation of courts “is likely to undermine, rather than enhance, the legitimacy of the Supreme Court … and there are good reasons to be skeptical about the usefulness of democratic values. ”Given my own opposition to judicial packaging, I totally agree.
I am far from the only observer to interpret the report in this way. Liberal and conservative commentators have taken a similar view on this, and the report’s skeptical view of “expanding the courts” has already aroused the ire of litigation advocates. In all fairness, at least one member of the Commission, Volokh Conspiracy co-blogger Will Baude, criticized the project for not being negative enough about the courts case. I, too, would prefer a stronger condemnation of the idea. But the report’s softer approach is still enough to prevent giving justice advocates any further impetus, and to point out that even many progressive jurists believe such proposals to be dangerously flawed.
As I recently pointed out, the decline in the popularity of the court over the past few months creates a potential window of opportunity for court advocates (although I have also pointed out that it will not be easy for court advocates. Democrats take advantage of it, and not clear they even want to). The Commission’s preliminary report does more to throw cold water on this potential fire than to fuel it.
On the other hand, the draft report on term limits is much more positive. It emphasizes widespread bipartisan support for the idea among academics, lawyers and others, and how an 18-year term limit could help resolve a number of issues. The report rightly points out that this proposal enjoys wider support than any other envisaged by the Commission.
I too am in favor of term limits and therefore welcome the apparent endorsement of the idea in the report. The report says commissioners are divided over whether term limits require constitutional amendment or can be enacted by law. In my opinion, an amendment is indeed necessary, and allowing Congress to do so by law would set a very dangerous precedent. The Mandates Report also includes in-depth discussions on various organizational issues that need to be addressed in order to implement Mandates, including how to manage the transition to a Mandate System and how to prevent conflicts of interest potentially caused by the desire of judges to pursue career opportunities after leaving court.
Although it has attracted less attention than reports on courts and term limits, the Commission has also published a report on other proposals to limit the power of the Supreme Court, including forfeiture of jurisdiction and legislative derogation from Supreme Court decisions. The latter idea is, in my opinion, as drastic a plan to sterilize the court as judicial tampering would be.
This report provides a balanced discussion of the long-standing debate on the limits of the authority of Congress to strip courts of jurisdiction over various types of cases. Significantly, members of the Commission seem the most skeptical of the more drastic stripping of jurisdiction proposals, which would deny jurisdiction over certain types of cases to all federal courts, instead of simply channeling those cases to a tribunal instead. than another. They are even more skeptical of proposals to deny jurisdiction to state courts, as well as federal courts.
As far as the legislative derogation is concerned, the report seems to me to be more skeptical than about the deprivation of jurisdiction. This suggests that such proposals may well be unconstitutional and, if adopted, would likely be struck down by the courts, thus potentially producing a constitutional crisis.
NYU Law Professor Christopher Jon Sprigman interprets the report as much more favorable to the deprivation of jurisdiction and the legislative derogation than me. Readers will have to judge for themselves which of us is right. Maybe we’re both influenced by our respective priorities (he supports those ideas, while I don’t). But I think, at the very least, that it is difficult to say that the report favors more radical ideas in this direction. He repeatedly points out that they can be unconstitutional and could lead to dangerous confrontations between the judiciary and Congress.
I would only add that progressives sympathetic to the idea of an American version of a legislative waiver similar to Canada’s notwithstanding clause would do well to take a look at how the latter has actually been used. His most important invocations have been to shield discriminatory Quebec laws targeting religious and linguistic minorities from judicial review. Our state and federal lawmakers may be more enlightened than their Canadian counterparts. But progressives inclined to take comfort in such thoughts should ask themselves if they feel this way about Republican-controlled congresses and state governments.
Finally, the Commission published a report focusing on the rules of the Court for the selection of cases and various other procedural matters. It covers issues such as shadow docket reform, proposals for a code of ethics for Supreme Court judges and the use of cameras in court. I will leave this one to commentators with greater expertise on the relevant issues. But, at least in my preliminary assessment, this report does not advocate any radical or seriously problematic reform. I agree with his apparent suggestion that cameras in the court would not be a problem, and that the court should continue its recently established practice of live streaming oral pleadings.
The four reports are valuable resources for academics and others interested in the topics they cover, as they do an excellent job of reviewing the literature on these issues and summarizing the arguments for and against various reform proposals. This will delight legal experts and commentators, but will do little to appease those who were hoping the Commission would enthusiastically support radical reform.
I hope that the term limits report will help to give momentum to this idea, although it will not be easy to enact the necessary constitutional amendment. The other reports are valuable resources for experts, but are likely to have only a very modest impact on public debate.
It is possible that the Commission’s final report (which may well include real reform recommendations) will take different positions with respect to these preliminary documents. At this point, I doubt that is the case. But time will tell!