Presidential Commission on the Supreme Court of the United States Final Report
Presidential Commission
on the
Supreme Court of the United States
FINAL REPORT
December 2021
December 8, 2021
Dear Mr. President:
The Presidential Commission on the Supreme Court of the United States established by your Executive Order 14023 respectfully submits its Report. At its public meeting on December 7, 2021, the Commission voted unanimously to approve this submission upon concluding that it had met its charge to provide an account of the current debate over the “role and operation of the Supreme Court in our constitutional system” and an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
The Commission was immensely assisted in its work by the diversity of perspectives and expertise among the Commissioners, written and oral testimony provided by experts and organizations in connection with the Commission’s hearings, the public’s engagement in the Commission’s work through the submission of comments, and excellent support from the staff at the General Services Administration.
We are honored to have had the opportunity to examine and then present to you an analysis of these complex and often controversial issues.
Respectfully,
Bob Bauer
Co-Chair
Cristina Rodríguez
Co-Chair
Kate Andrias
Rapporteur
Table of Contents
| i |
| 1 |
| 2 |
| 6 |
| 11 |
| 12 |
IV.I. The Genesis of Today’s Reform Debate |
12 |
IV.II. Proposals for Reform |
20 |
| 34 |
IV.I. The Origins of Federal Judicial Power |
34 |
IV.II. The Origins of the Supreme Court: The Constitution and the Judiciary Act of 1789 |
36 |
IV.III. The Court and Politics in the Early National Period |
39 |
IV. The Jacksonian Era: National Expansion, Court Expansion, and Partisan Strife |
43 |
IV.V. The Upheavals of the Civil War and Reconstruction: Transforming the Constitution |
46 |
VI. The Progressive Era: Structural Reforms and Democracy-Based Critiques of the Courts |
49 |
VII. 1937, FDR, and the Court: Existential Challenges |
54 |
VIII. The Postwar Period: Brown v. Board of Education and the Warren Court |
57 |
IV.IX. Conclusion |
59 |
| 67 |
IV.I. A Brief History of Efforts to Alter the Size of the Court |
67 |
IV.II. The Legality of Court Expansion |
73 |
IV.III. Arguments in Support of and Opposition to Court Expansion |
74 |
IV. Other Structural Reforms |
84 |
| 111 |
IV.I. The Justifications for Term Limits |
112 |
IV.II. Objections to Term Limits |
117 |
IV.III. Analyzing a Constitutional Amendment for Term Limits |
122 |
IV. Enacting Term Limits through Statute |
130 |
IV.V. Addressing the Risk of Repeated Confirmation Impasse |
140 |
VI. Concluding Considerations |
143 |
| 152 |
IV.I. Proposals to Restrict the Supreme Court’s Jurisdiction |
154 |
IV.II. Proposals for Supermajority Rules or Deference Rules at the Supreme Court |
169 |
IV.III. Proposals to Enable Legislative Overrides of Supreme Court Decisions |
183 |
| 202 |
IV.I. Emergency Orders |
203 |
IV.II. Judicial Ethics |
216 |
IV.III. Courtroom Transparency |
225 |
| 245 |
| 247 |
| 254 |
| 263 |
| 275 |
Executive Order 14023 established this Presidential Commission on the Supreme Court of the United States. The Order directed the Commission to provide an account of the current debate over the “role and operation of the Supreme Court in our constitutional system” and an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
Consistent with the Executive Order, the Report identifies prominent proposals for reform and provides a critical evaluation of the strengths and weaknesses of the proposals. This appraisal includes consideration of whether specific proposals could reasonably be expected to achieve the objectives that their proponents desire. It also identifies other potential consequences that might result from the reforms, including whether and how they might affect: the critical role of the Court in our system of government, including as a guardian of the rule of law; the protection of constitutional rights, principles, or structures; the processes by which Justices are nominated and confirmed to the Court; and public opinion and perceptions of the Court.
The Report also analyzes the constitutional and other legal requirements that would have to be met or resolved to implement the reforms.
The President made plain in public statements and in his Executive Order that he was seeking a Report reflecting bipartisan, diverse perspectives from Commissioners “having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” As would be expected, the Commissioners appointed by the President hold various and sometimes opposing views on the legal and policy issues raised in the Court reform debate, and disagreements are noted at various points in the analysis. The Executive Order does not call for the Commission to issue recommendations, but the Report does provide a critical appraisal of arguments in the reform debate.
Given the size and nature of the Commission and the complexity of the issues addressed, individual members of the Commission would have written the Report with different emphases and approaches. But the Commission submits this Report by unanimous vote, in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.
- Michelle Adams
- Professor of Law at Benjamin N. Cardozo School of Law
- Kate Andrias (Rapporteur)
- Professor of Law at Columbia Law School
- Jack Balkin
- Knight Professor of Constitutional Law and the First Amendment at Yale Law School
- William Baude
- Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School
- Bob Bauer (Co-Chair)
- Professor of Practice and Distinguished Scholar in Residence at the New York University School of Law and Co-Director of NYU Law’s Legislative and Regulatory Process Clinic
- Elise Boddie
- Professor of Law, Henry Rutgers Professor, and Judge Robert L. Carter Scholar at Rutgers University
- Guy-Uriel E. Charles
- Charles J. Ogletree Jr. Professor of Law at Harvard Law School
- Andrew Manuel Crespo
- Morris Wasserstein Public Interest Professor of Law and Executive Faculty Director of the Institute to End Mass Incarceration at Harvard Law School
- Walter Dellinger
- Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers
- Justin Driver
- Robert R. Slaughter Professor of Law at Yale Law School
- Richard Fallon, Jr.
- Story Professor of Law at Harvard Law School
- Caroline Fredrickson
- Distinguished Visiting Professor from Practice at Georgetown Law and a Senior Fellow at the Brennan Center for Justice
- Heather Gerken
- Dean and Sol & Lillian Goldman Professor of Law at Yale Law School
- Nancy Gertner
- Federal judge (retired), Senior Lecturer (Harvard Law School), attorney at Fick & Marx, and Guttman, Buschner, & Brooks
-
- Thomas B. Griffith
- Federal judge (retired), attorney at Hunton Andrews Kurth and Lecturer (Harvard Law School)
- Tara Leigh Grove
- Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law
- Bert I. Huang
- Michael I. Sovern Professor of Law at Columbia University
- Sherrilyn Ifill
- President & Director-Counsel NAACP Legal Defense & Educational Fund, Inc.
- Olatunde Johnson
- Jerome B. Sherman Professor of Law at Columbia Law School
- Michael S. Kang
- William G. and Virginia K. Karnes Research Professor at Northwestern Pritzker School of Law
- Alison L. LaCroix
- Robert Newton Reid Professor of Law at the University of Chicago Law School and Associate Member, Department of History, University of Chicago
- Margaret H. Lemos
- Robert G. Seaks LL.B. ’34 Professor of Law, Duke University
- David F. Levi
- Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute at Duke Law School
- Trevor W. Morrison
- Dean and Eric M. & Laurie B. Roth Professor of Law at New York University School of Law
- Richard H. Pildes
- Sudler Family Professor of Constitutional Law at New York University School of Law
- Michael D. Ramsey
- Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law
- Cristina M. Rodríguez (Co-Chair)
- Leighton Homer Surbeck Professor of Law at Yale Law School
- Kermit Roosevelt
- Professor of Law at University of Virginia School of Law
- Bertrall Ross
- Professor of Law at the University of Pennsylvania Carey Law School
- David A. Strauss
- Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic at the University of Chicago
-
- Laurence H. Tribe
- Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University
- Michael Waldman
- President of the Brennan Center for Justice at NYU School of Law
- Adam White
- Senior Fellow at the American Enterprise Institute and co-director of George Mason University's C. Boyden Gray Center for the Study of the Administrative State
- Keith E. Whittington
- William Nelson Cromwell Professor of Politics at Princeton University and chair of Academic Freedom Alliance
Commission Staff and Support
| Full-time Federal Staff | |
| Dana Lehder Roberts Fowler Designated Federal Officer (DFO), General Services Administration | |
| Patrick McConnell Working Group DFO, General Services Administration | |
| Marten Wallace Public Comment Management, General Services Administration | |
| Part-time Federal Staff | |
| Ivana Henry Zoom Manager, General Services Administration | |
| Helen Heinrich Proofreader, General Services Administration | |
| Former Commission Staff | |
| Marcerto Barr Administrative Support, General Services Administration | |
| Contracting Staff | |
| Cody Dean EGlobalTech | |
| Devon Andrew EGlobalTech | |
On April 9, 2021, President Joseph R. Biden, Jr. issued Executive Order 14023 establishing this Commission, to consist of “individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” The Order charged the Commission with producing a report for the President that addresses three sets of questions. First, the Report should include “[a]n account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.” Second, the Report should consider the “historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform.” Third, the Report should provide an analysis of the principal arguments for and against particular proposals to reform the Supreme Court, “including an appraisal of [their] merits and legality,” and should be informed by “a broad spectrum of ideas.”
The Report begins by explaining the genesis of today’s Court reform debate, including by identifying developments that gave rise to President Biden’s decision to issue the April 2021 Executive Order, particularly the debates surrounding the most recent nominations. This Introduction emphasizes that the Court’s composition and jurisprudence long have been subjects of public controversy and debate in the nation’s civic life: The Court serves as a crucial guardian of the rule of law and also plays a central role in major social and political conflicts. Its decisions have profound effects on the life of the nation. Though conflict surrounding the processes by which the President nominates and the Senate confirms Justices is not new, it has become more intensely partisan in recent years.
The Introduction also articulates three common and interrelated ideas frequently invoked in reform debates and throughout the Chapters of the Report: the importance of protecting or enhancing the Court’s legitimacy; the role of judicial independence in our system of government; and the value of democracy and its relationship to the Supreme Court’s decisionmaking. These important ideas can mean different things to different people. The Introduction discusses the range of meanings ascribed to these terms, with the aim of clarifying how they are deployed in arguments for and against reform.
Chapter 1
Chapter 1 provides a history of efforts to reform the Supreme Court dating back to the Founding. This history highlights how lawmakers and the public, throughout the Nation’s history, have been attentive to and engaged in debate about the role the Court plays within the constitutional system. Reform debates have reflected the institutional needs of an expanding nation, and they have involved partisan conflict and philosophical struggle over substantive constitutional values and the power of government to serve the needs of the people. We offer this history not to attempt to resolve today’s debate according to a particular historical standard, but rather to offer context for today’s discussions and to underscore that debates about Court reform are part and parcel of U.S. constitutional history and the development of the American political order.
Chapter 2
Chapter 2 examines proposals to expand or otherwise alter the current structure of the Supreme Court. The Chapter begins by presenting a brief history of past efforts to alter the size of the Court, dating back to the nineteenth century. It then proceeds to consider the legality of Court expansion, concluding based on text, structure, and history that Congress has broad authority to modify the Court’s size.
The Chapter then describes arguments made in the public debate both for and against Court expansion. Supporters contend that Court expansion is necessary to address serious violations of norms governing the confirmation process and troubling developments in the Supreme Court’s jurisprudence that they see as undermining the democratic system. Opponents contend that expanding—or “packing”—the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary Court reform debate.
The Chapter also considers other structural reforms to the Court, such as proposals to provide for rotation between the Supreme Court and the lower federal courts, divide the Supreme Court into panels, or ensure ideological balance on the Court. The Commission concludes that some of these proposals rest on sounder constitutional ground than others. Nonetheless, most such proposals would require significant changes to our federal judicial system and offer uncertain practical benefits.
Chapter 3
Chapter 3 considers proposals for establishing non-renewable term limits for Supreme Court Justices. Proponents of term limits argue that they would help ensure that the Court’s membership is broadly responsive to the outcome of elections over time; make appointments to the Court more predictable and less arbitrary; reduce the chances that excess power might be concentrated in any single Justice for extended periods of time; and enhance the Court’s decisionmaking by ensuring regular rotation in decisionmakers, while maintaining judicial independence by guaranteeing long terms and lifetime salaries. Opponents of term limits argue that eliminating life tenure would weaken the Constitution’s express protection of judicial independence, which could undermine the Court’s legitimacy; further politicize the selection and confirmation process by requiring confirmations every two years; heighten the perception that Justices are partisan or political actors; and destabilize Court doctrine. Opponents do not agree that long fixed terms and lifetime salaries would solve these problems.
Without taking a position on the merits of term limits, the Chapter considers design questions that would have to be addressed were term limits to be adopted. It begins by considering how to draft a constitutional amendment to establish term limits and then proceeds to consider whether a similar system could be adopted by statute. In this analysis, the Chapter addresses key implementation questions, including the length of terms; the number of appointments a President should be able to make in a four-year term; how to transition from our current system of life tenure to a term-limited system; whether to impose constraints on Justices’ post-tenure employment; and the challenge presented by potential impasses in the Senate’s confirmation process. Opponents of term limits cite what they believe to be the intractability of these implementation questions as reason not to pursue term limits. Proponents emphasize that the benefits of term limits warrant grappling with what they believe are difficult but soluble design questions.
Chapter 4
Chapter 4 explores proposals that would reduce the power of the Supreme Court or of the judicial branch as a whole. Many proposals for reforming the Court accept the scope of its power more or less as a given. By contrast, the proposals canvassed in this Chapter would curb the Justices’ capacity to invalidate legislation. They are designed to shift power to resolve major social, political, and cultural issues from the Court to the political branches.
Without attempting to address all potential means of reducing the Court’s power, this Chapter examines jurisdiction stripping; supermajority voting requirements for the invalidation of congressional or other government action, as well as other rules that would require courts to show greater deference to the political branches; and proposals for a constitutional amendment to authorize Congress, through legislation, to override decisions of the Supreme Court and other courts. The Chapter analyzes how such reforms might affect the role of the Supreme Court or other courts in relation to the elected branches of government; the potential benefits and costs of the proposals; and whether they would require constitutional amendment.
The Chapter concludes that the efficacy of proposals targeting the jurisdiction of the Supreme Court or otherwise constraining its decisionmaking depend on the details of the proposals, including whether they also affect lower court and state court decisionmaking. We also conclude that the reforms that would most directly reduce the Supreme Court’s (and other courts’) power over fundamental social questions are also ones that, absent constitutional amendment, the Court would most likely find to be unconstitutional. However, the Chapter highlights arguments regarding how Congress might engage in more robust constitutional interpretation and enforcement even without constitutional amendment. Without taking a position on the ultimate merits of such proposals, this Chapter aims to help inform further debate about whether reforms would be worth pursuing.
Chapter 5
Chapter 5 addresses how the Supreme Court conducts its work and explains its decisions. Although much of the public discussion about Court reform has been focused on structural issues, the Court’s internal procedures and practices also have been a part of contemporary debates about the Court’s role and operations. Accordingly, Chapter 5 focuses on three sets of issues.
The first is the Court’s use of emergency orders, which are issued without the rounds of briefing and oral argument that its merits cases receive, and often also without a written explanatory opinion—even in cases that can generate intense public debate, involving issues of national importance or great practical impact. The Chapter reviews recent controversies relating to emergency orders and apparent changes in the Court’s approach to managing them. It notes that the Court may well benefit from continuing to adjust its explanatory practices in important cases, with an eye toward providing insight into its reasoning, reinforcing procedural consistency, and avoiding any possible appearance of arbitrariness or bias. The Chapter also addresses issues presented by emergency orders in capital cases, where the Court often has the final word on whether a state or federal execution will go forward.
The second set of issues concerns judicial ethics. The Chapter reviews potential benefits and drawbacks of reforms that would impose on the Justices a code of conduct, a disciplinary framework, or recusal review. The Chapter explores the potential difficulties presented by a framework containing binding sanctions, but also notes that experience in other contexts suggests that the adoption of an advisory code of conduct would be a positive step on its own.
The third topic is public access to the Court’s proceedings through the audio or video streaming of oral arguments and opinion announcements in real time. The Chapter acknowledges that several Justices have expressed opposition to the use of cameras, but suggests that the continuation of near-simultaneous audio would enable the media and interested members of the bar and the public to better follow the work of the Court.
The Presidential Commission on the Supreme Court of the United States would like to give special acknowledgment to Designated Federal Officer Dana Fowler for her exceptional leadership and to the team at the General Services Administration: Patrick McConnell, Marten Wallace, Ivana Henry, Helen Heinrich, Marcerto Barr, Cody Dean, and Devon Andrew. The Commission would not have been able to complete its charge without their outstanding support and assistance. The Commission would also like to thank the following individuals for the stellar research assistance they provided to individual Commissioners:
- Nimo Ali
- Elayne Allen
- Sierra Anderson
- Michael Avi-Yonah
- Sam Ayres
- Christian Bale
- Samantha C. Bensinger
- Kelsey Borenzweig
- Gregory Briker
- Julia Bruce
- Callie Bruzzone
- Colin Burke
- Emahunn Campbell
- Simon Chin
- Jenny Choi
- Kayla Crowell
- Katherine Fang
- Tal Fortgang
- Nicole Frazer
- Megan Gilligan
- Isaac Green
- Mason Grow
- Phil Haunschild
- David Herman
- Emma Hlavin
- Jessica Huang
- Chris Ioannou
- Freya Jamison
- Broderick Johnson
- Miranda Katz
- Alexander Khan
- Joohwan Kim
- Joe Krakoff
- Jordan Krieger
- Zac Krislov
- Gatien Laurol
- Roman Leal
- Jeremy Lewin
- Adam Littlestone Luria
- Cynthia Long
- John Macy
- Kellen McCoy
- Brent McKnight
- Karl Mihm
- Ben Miller-Gootnick
- Nicole Mo
- Patrick C. Monaghan
- Jennifer Monge
- Alexander Nocks
- Ayoub Ouederni
- Elizabeth Peled
- Angela Peterson
- Beatrice Pollard
- Allison Rabkin Golden
- Austin Reagan
- Kristen Renberg
- Thomas Ritz
- Sophie Rizzieri
- Andrew Sacks
- Jenny Samuels
- Gavriel Schreiber
- Arijeet Sensharma
- Kaveri Sharma
- Carly Siditsky
- Alexandra Smith
- Elyssa Spitzer
- John Sullivan
- Matt Summers
- Brittany M. Thomas
- Nate Urban
- Bardia Vaseghi
- Lily Vaughan
- Bill Weber
- Layla West
- Noelle Wyman
- Paul Zebb
- Jeff Zymeri
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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