The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, President Biden's Commission on the Supreme Court released "discussion materials" covering a variety of issues, including court-packing and term limits for Supreme Court justices. These are preliminary reports and do not include actual recommendations. But they do provide a helpful window on the views of the Commission members.
As I and others predicted based on the Commission's composition, the reports are generally skeptical about court-packing, but favorable to the idea of term limits. If, as some conservatives feared, Biden wanted the Commission to produce an endorsement of court-packing in order to generate political momentum for that idea, he wouldn't have included so many court-packing skeptics among the members. He would instead have packed the Commission with packers!
The report addressing court-packing provides a detailed overview of arguments for and against the idea, and various proposals to increase or modify the composition of the Court. While it notes that some Commission members are sympathetic to packing as a way to offset what they see as illegitimate Republican manipulation of the Supreme Court nomination process, the dominant tone is one of skepticism.
The report emphasizes that even many of those commissioners who strongly dislike the current composition of the Court believe that court-packing "is likely to undermine, rather than enhance, the Supreme Court's legitimacy … and there are significant reasons to be skeptical that expansion would serve democratic values." Given my own opposition to court-packing, I very much agree.
I am far from the only observer to interpret the report this way. Both liberal and conservative commentators have taken a similar view of it, and the report's skeptical view of "court expansion" has already attracted the ire of court-packing advocates. In fairness, at least one member of the Commission—Volokh Conspiracy co-blogger Will Baude—has criticized the draft for not being negative enough about court-packing. I too would prefer a more forceful condemnation of the idea. But the report's more moderate approach is still enough to forestall giving court-packing advocates any additional momentum, and to make the point that even many progressive legal scholars believe such proposals are dangerously misguided.
As I recently pointed out, the decline in the Court's popularity over the last few months creates a potential window of opportunity for court-packing advocates (though I also emphasized that it will not be easy for Democrats to take advantage of it, and not clear that they even want to). The Commission's preliminary report does more to throw cold water on this potential fire than to fuel it.
By contrast, the draft report on term limits is much more positive. It emphasizes the widespread bipartisan support for the idea among academics, jurists, and others, and the ways in which an 18 year term limit could help address a number of problems. The report correctly emphasizes that this proposal enjoys broader support than any other considered by the Commission.
I too support term limits; so I welcome the report's apparent endorsement of the idea. The report indicates that Commissioners are divided over the question of whether term limits require a constitutional amendment or can be enacted by statute. In my view, an amendment is indeed necessary, and allowing Congress to do it by statute would set a very dangerous precedent. The term limits report also includes insightful discussions of various organizational issues that must be addressed in order to implement term limits, including how to manage the transition to a term limit system and how to prevent conflicts of interest potentially caused by justices' desire to pursue additional career opportunities after they have to leave the Court.
Although it has attracted less attention than the court–packing and term limits reports, the Commission has also issued a report on other proposals to limit the Supreme Court's power, most notably jurisdiction-stripping and legislative override of Supreme Court decisions. The latter idea is, in my view, as radical a plan to neuter the Court as court-packing would be.
This report provides a balanced discussion of the longstanding debate over the limits of Congress' authority to strip courts of jurisdiction of various types of cases. Significantly, the Commission members seem most skeptical of the more radical jurisdiction-stripping proposals, that would deny jurisdiction over some types of cases to all federal courts, as opposed to merely channeling those cases to one court instead of another. They are even more skeptical of proposals to deny jurisdiction to state courts, as well as federal ones.
With regards to legislative override, the report strikes me as more skeptical than about jurisdiction-stripping. It suggests that any such proposals may well be unconstitutional, and—if enacted—would likely be invalidated by the courts, thereby potentially producing a constitutional crisis.
NYU law Professor Christopher Jon Sprigman interprets the report as much more favorable to jurisdiction-stripping and legislative override than I do. Readers will have to judge for themselves, which of us is right. Perhaps both of us are influenced by our respective priors (he supports these ideas, while I do not). But I think, at the very least, that it's hard to argue that the report is favorable to more radical ideas along these lines. It repeatedly emphasize that they may be unconstitutional and could lead to dangerous confrontations between the judiciary and Congress.
I would only add that progressives sympathetic to the idea of a US version of legislative override similar to Canada's Notwithstanding Clause would do well to take a look at how the latter has actually been used. It's most significant invocations have been to shield from judicial review discriminatory Quebec legislation targeting religious and linguistic minorities. Perhaps our state and federal legislators are more enlightened than their Canadian counterparts. But progressives inclined to take comfort in such thoughts should consider whether they feel that way about Republican-controlled Congresses and state governments.
Finally, the Commission has put out a report focused on the Court's rules for case selection, and various other procedural issues. It covers such issues as reform of the "shadow docket," proposals for an ethical code for Supreme Court justices, 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 doesn't advocate any radical or seriously problematic reforms. I agree with its apparent suggestion that cameras in the Court would not be a problem, and that the Court should continue its recently established practice of livestreaming of oral arguments.
All four reports are valuable resources for scholars and others interested in the subjects they cover, because they do an excellent job of surveying the literature on these issues, and summarizing arguments for and against various reform proposals. That will experts and legal commentators happy, but won't do much to mollify anyone who hoped that the Commission would provide a rousing endorsement of radical reform.
I hope that the term limits report will help generate momentum for this idea, though it will not be easy to enact the necessary constitutional amendment. The other reports are valuable resources for experts, but probably won't have more than a very modest impact on public debate.
It's possible that the Commission's final report (which may well include actual recommendations for reform) will take different positions form these preliminary documents. At this point, I doubt that will be the case. But time will tell!