Too Many Cooks on Supreme Court Reform?

            The need for Supreme Court reform is urgent precisely because the nomination and confirmation process has become in the hands of Republican presidents and Republican senators a partisan spoils system. The resulting partisanship may well doom any or all of the various reform proposals now being debated by, among others, the 36-member commission appointed by President Biden

             No one expected that Supreme Court reform would be anything other than deucedly difficult, and the work of the Presidential Commission on Supreme Court Reform has not yet made the task easier or more auspicious. In creating the commission by Executive Order 14023, President Biden limited the membership commission to no more than thirty-six, but that number itself poses daunting obstacles to producing a consensus report that can overcome the partisan resistance to any of the reform proposals.

             The commission met for a six-hour talk fest on Friday (Oct. 15) the day after the commission released draft discussion materials prepared by working groups on such proposals as expanding the size of the Court and establishing term limits for Supreme Court justices. The draft materials were dismissively summarized on Twitter by Eric Segall, a law professor at Georgia State, in these words: “A little of this and a little of that and a lot of nothing. And so it goes.”

             In Friday’s meeting, several of the commissioners, including the Harvard Law School professor Laurence Tribe, objected in particular to the ostensibly even-handed approach that the working group used in the 45-page report describing proposals to increase the size of the Court. As drafted, Tribe complained, the report “stops the discussion as related to expansion.”

             Here’s the rub: adding one or more new justices with a Democrat in the White House would be the most straightforward remedy for the Republicans’ packing of the Court that began with the Senate’s refusal in 2016 to consider President Obama’s nomination of Merrick Garland for the vacancy created by Justice Antonin Scalia’s death. The GOP-majority Senate packed the Court further by changing Senate rules to fast-track confirmations of President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett. The last of those party-line confirmations came on October 25, 2020, as the American people were already voting to deny Trump re-election. 

Tribe also noted that among the various proposals under discussion, changing the size of the Court is the most clearly within Congress’s power to enact. He warned that he “would have trouble signing” the commission’s eventual report if it threw cold water “on the one legitimate exercise of congressional power to counteract a dangerous judicial trend.”

Even without constitutional doubts, expanding the size of the Court would be difficult at best to get through the Senate if Republicans use the filibuster to thwart the will of the narrow Democrats’ 52-48 majority. In contrast to the draft discussion on expanding the size of the Court, the draft materials on term limits acknowledge the “widespread and bipartisan support” for limiting tenure for justices. The thirty-page report adds that term limits “can enhance the Court’s legitimacy in the eyes of the public.” Despite those favorable assessments, the report nevertheless warns that term limits “are not a panacea for polarization.” The report then adds that mandatory retirements “would ensure some degree of responsiveness to elections over time, while preserving judicial independence.”

Presidential commissions can help form conventional wisdom on contentious political issues even without producing tangible results. In that regard, recall the strongly worded Kerner Commission report in 1968 that linked urban riots to the persistence of poverty and institutional racism. Sadly, most of the commission’s recommendations to address those issues went unacted on. The present commission on Supreme Court reform can help counteract the hyper politicization of the Court only if the members coalesce behind a strongly worded report that places the blame for the current polarization where it belongs and avoids the use of false equivalencies to spread the blame around.

The draft materials on expanding the size of the Court echo the warnings from, among others, Breyer that adding one or more justices would invite a tit-for-tat response by the opposite party at some later date. In Friday’s meeting, one of the commissioners, the conservative George Mason University law professor Adam White, appeared to adopt the view submitted by Georgetown law professor Randy Barnett that Congress has no power to change the size of the Court only for partisan balance.

Tribe, with far stronger academic credentials than Barnett, rejected Barnett’s view, contending that Congress’s motivations for changing the size of the Court would be irrelevant. In fact, the draft materials note that Congress has changed the size of the Court more than half a dozen times through history, for a mixture of institutional and partisan reasons.

The well known maxim may apply here: too many cooks can spoil the soup. The commission will serve a useful purpose only if the commissioners – most of them, respected law professors from prestigious law schools – can set aside any partisan differences to produce a strongly worded report that sets out a viable path for reducing the acknowledged increase in partisan conflict in recent years.