Presidential Commission on the Supreme Court of the United States
- ↑ See Greene Testimony, supra note 100, at 9 (“Workload alone provides good and sufficient reason for the U.S. Supreme Court to have more than nine members.”); Id. at 10 (listing the various ways in which a larger Court could increase the pace and enhance the quality of its work, including through more attention to testing legislative facts and answering certified questions from lower courts).
- ↑ See Presidential Commission on the Supreme Court of the United States 2, 16–17 (July 20, 2021) (written testimony of Vicki C. Jackson, Harvard Law School) [hereinafter Jackson Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf (“I urge the Commission to consider proposals to provide for fluctuating Court membership, or a ‘decoupling’ of appointments from vacancies, by guaranteeing one, or two, presidential appointments each term, while letting the overall numbers on the Court fluctuate. … Such a mechanism could be capped (e.g. at 11) to keep the Court to a workable number.”); see also Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 136–38 (2021) (making a similar proposal, albeit without fixing an upper boundary on the number of Justices).
- ↑ See Resnik Testimony, supra note 100, at 23; Greene Testimony, supra note 100, at 9.
- ↑ See Thomas E. Griffith, The Degradation of Civic Charity, 134 Harv. L. Rev. F. 119, 122, 136 (2021).
- ↑ For example, during the Commission’s public hearings, some witnesses who opposed Court packing asserted that term limits could be a beneficial reform. See Jackson Testimony, supra note 106, at 2; Presidential Commission on the Supreme Court of the United States 17–20 (July 20, 2021) (written testimony of Neil S. Siegel, Duke Law School) [hereinafter Siegel testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Siegel-Testimony.pdf.
- ↑ See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575–76 (2019) (holding that the federal executive branch failed to adequately explain its decision to add a citizenship question to the U.S. Census, and concluding that the matter must be sent back to the agency for further explanation).
- ↑ See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020) (holding that the rescission of the Deferred Action for Childhood Arrivals program was arbitrary and capricious under the Administrative Procedure Act because DHS did not “provide a reasoned explanation for its action”).
- ↑ See, e.g., Texas v. Pennsylvania, 141 S. Ct. 1230, 1230 (2020) (rejecting, on standing grounds, an original action brought by a state to prevent several other states—Georgia, Michigan, Pennsylvania, and Wisconsin—from certifying presidential electors); see also Siegel Testimony, supra note 109, at 6 (“[B]y most accounts, the federal courts—including the Justices—performed well during the controversies surrounding the 2020 presidential elections, regardless of the political affiliations of the judges.”).
- ↑ Siegel Testimony, supra note 109, at 5–6. This position has considerable historical support. See Tom S. Clark, The Limits of Judicial Independence 15–16, 193 (2011) (arguing, based on a statistical analysis of judicial reactions to legislative proposals to curb the Supreme Court from 1877–2008, that “when Court-curbing bills are introduced in Congress, the justices will exercise self-restraint by attenuating their use of judicial review to invalidate federal legislation”); see also Walter F. Murphy, Congress and the Court 62 (1962) (arguing that, historically, the Justices have been “acutely aware of the attacks against their decisions, and … willing to make concessions when they felt that danger had become too threatening”).
- ↑ Michael C. Dorf, How the Written Constitution Crowds Out the Extraconstitutional Rule of Recognition, in The Rule of Recognition and the U.S. Constitution 69, 79–81 (Matthew D. Adler & Kenneth Einer Himma eds., 2009) (“[W]hat Roosevelt had proposed to do was something that just isn’t done. It violated the customary norm obligatory on Congress even though not formally part of the Constitution.”); see Bradley & Siegel, supra note 54, at 269–87; Grove, supra note 54, at 505–17, 538–44; see also Adrian Vermeule, The Atrophy of Constitutional Powers, 32 Oxford J. Legal Stud. 421, 424 (2012) (noting that “the rejection of Roosevelt’s court-packing plan in 1937 … is said by many to have created an unwritten constitutional norm against court-packing”); Tom Donnelly, Note, Popular Constitutionalism, Civic Education and the Stories We Tell Our Children, 118 Yale L.J. 948, 994 (2008) (“No contemporary textbook presents an account that even subtly suggests the potential legitimacy of an argument in favor of ‘packing’ the Court under similar circumstances.”); infra notes 108–144 and accompanying text.
- ↑ Krotoszynski, Jr., supra note 70, at 1063–64.
- ↑ David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 (2014).
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