Biden’s court-reform commission hears from experts on term limits and judicial review
on Jul 1, 2021 at 8:45 am
The debate over Supreme Court reform continued Wednesday as a White House commission heard testimony on a broad range of reform proposals, including adding seats to the court, shrinking its influence, increasing its transparency, and limiting the tenure of the justices. The all-day hearing was the second meeting of the Presidential Commission on the Supreme Court of the United States, a bipartisan, 36-member commission that Biden appointed in response to calls from some Democrats to expand the size of the court. The commission is tasked with studying potential reforms and submitting a report to the president this fall.
The meeting was split up into four panels of experts. Panelists had five minutes to make opening statements, and four or five commissioners per panel were each given 10 minutes for questions. The panels covered four broad themes: the origins of Supreme Court reform efforts, the court’s role in the American constitutional system, the court’s case-selection process, and transparency issues.
Kicking off the meeting, the commissioners heard from Nikolas Bowie, an assistant professor at Harvard Law School. Bowie advocated against judicial review — the court’s power to strike down laws as unconstitutional. He referred to the Supreme Court as an “antidemocratic institution,” labeled judicial review as an “antidemocratic superweapon,” and suggested that the United States would be better off if it aspired to be as democratic as New Zealand. Bowie urged the commission to evaluate all of the proposals it considers with an eye toward increasing political equality by disempowering the court.
His colleague Noah Feldman, also a law professor at Harvard, disagreed, urging the commissioners not to assume that judicial review is inherently antidemocratic. He said that the Supreme Court is certainly “counter-majoritarian” in the sense that the justices are not directly elected, but it is still a democratic institution because it is a tool the people have chosen, by democratic means, to protect the democratic process. Democracy works through a system of checks and balances, he said, and judicial review is one such check. Another check, he added, is the implicit threat that it is within Congress’ power to pack the court. But Feldman said court packing should be a “break glass measure” only to be used after an extended period in which the court is in a crisis of illegitimacy. He and other panelists argued that no such crisis exists today.
On another panel, Professor Rosalind Dixon of the University of New South Wales echoed Feldman’s opinion that now is not an appropriate time to expand the court or strip it of jurisdiction. She also provided the commissioners with an international perspective. As she explained, the United States stands as a beacon for constitutional democracy in many places throughout the world, and any reform enacted by the United States could later be used as a reference to legitimize authoritarian tactics in other countries. She emphasized that some of the worst attacks on democracy in the past decades have been effectuated through expansion of courts. Other panelists also indicated disfavor toward court packing and jurisdiction stripping, instead favoring term limits as a potential reform for the court.
Ilan Wurman, an associate professor of law at Arizona State University, explained that term limits for the justices would also operate as a reform on the confirmation process, which has been viewed as a system that has devolved into a partisan affair in recent years. As Maya Sen, a Harvard political scientist, put it, the primary goal of the commission should be to reduce incentives for justices to engage in gamesmanship, and term limits would eliminate the ability to hold positions open for partisan advantage. Staggered 18-year term limits, for instance, would eliminate the tendency of justices to retire at moments when their preferred political party controls the White House. Additionally, Sen said, the United States is the only major democracy in the world without term limits for its highest court.
Another potential reform is for Congress to impose supermajority voting rules for the Supreme Court or a similar form of requiring that the court finds a clear constitutional error before overturning a statute. One commissioner — Professor Michael Ramsey of the University of San Diego School of Law — indicated he was intrigued by that idea. But many of the panelists objected to it, saying that it would create more gridlock and that other countries have used similar reforms in antidemocratic ways.
Advocating for increased transparency in the court’s practices, Amy Howe, the co-founder of SCOTUSblog, also appeared as a panelist. Howe, who currently reports on the court for SCOTUSblog as an independent contractor, explained that the greatest step toward better transparency would permanently make live audio or video of oral arguments available to the public. These arguments often affect many people across the country, and everyone should have the opportunity to see or hear them, she said. For the first time in its history, the court made live audio of its arguments available to the public during the COVID-19 pandemic, but the court has not indicated whether it will continue the practice next term.
More discussion is still to come. Information on Wednesday’s panelists as well as corresponding written testimony can be found here, and public comments are posted here. Four more public meetings will take place before the commission finishes its report, with the next slated for July 20. At that meeting, the commission will hold six more panels covering topics including the confirmation process, court reform, term limits and turnover, the composition of the court, and closing reflections on the Supreme Court and constitutional governments. The final three meetings have been tentatively scheduled for Oct. 1, Oct. 15 and Nov. 10. The commission will also continue to accept public comments until Nov. 15.