Concurring Opinions from members of the Supreme Court Commission

I blogged last week about the final report of the Presidential Commission on the Supreme Court. Today the White House released two official statements by three other members of that commission—one by George Mason/AEI's Adam White, and the other by former judges Thomas Griffith and David Levi. They were each limited to 800 words, so I will reprint them below:

Separate Statement of Commissioner Adam White

December 15, 2021

The Supreme Court was established for an indispensable constitutional purpose: to
decide cases under the rule of law. Any attempt to understand the Court must begin
from that premise. And any attempt to reform the Court for other purposes would
be recklessly shortsighted. The only reforms worthy of our Constitution, and worthy
of two centuries' statesmen and citizens who sustained it, must answer a simple
question: would the changes improve the Court's capacity to function as a court?
But the most prominent "reforms" described in the Commission's report,
unfortunately, would serve much different purposes. So I write separately, to
highlight some of their most dangerous aspects.

Court–Packing

Court–packing is anathema to constitutional government. While Congress is
empowered by the Constitution to add seats to the Court, the history of Court
expansion is one of admirable self–restraint by Congress. Over the nation's first
century, Congress largely set the Court's size by reference to the judiciary's genuine
needs, particularly in terms of the justices' old circuit–riding duties in a fast–growing
continental republic. Since 1869, the Court's size has remained stable, and for one
and a half centuries the nine–justice bench has proved conducive to the justices'
work of deliberation, decision, and explanation.

To pack the Court would impair the Court, not improve it: destabilizing it, further
politicizing it, and complicating its basic work of hearing and deciding cases under
the rule of law. And one needs a willing suspension of disbelief not to see that
Court–packing would inaugurate an era of re–packing, destroying the Court's
function and character as a court of law.

Term Limits

Proposals for judicial term limits have some superficial appeal: given the much
longer lifespans with which we are blessed, a justice appointed today with life
tenure can serve on the Court much longer than early justices generally did. But
upon closer inspection, judicial term limits are much more problematic—especially
when they are intended to allocate appointments on the calendar of presidential
terms.

By tying Supreme Court vacancies and appointments directly and exclusively to the
outcomes of presidential elections, a term–limits framework would further corrode
the appearance of judicial neutrality and independence, making the Court a spoil
not just of politics, but of presidential politics exclusively.

And to reliably deliver Supreme Court appointments to the president, a term–limit
framework would need a constitutional amendment preventing the Senate from
disagreeing with a president's preferences (as the Commission's report describes
candidly). In an era when Congress needs to be reinvigorated, advocates for judicial
term limits would only further diminish it.

Reform, Restraint, and Self–Restraint

The Supreme Court was designed to exercise "neither force nor will, but merely
judgment." The Court's judgments necessarily entail some discretion, when laws are
written without perfect clarity or foresight. But aspects of the Court's work now involves vaster discretion, and reforms limiting its discretion may help the Court to function better as a court of law.

First, the Court's power to select its own cases is almost entirely discretionary,
which complicates and politicizes the Court's work. Legislation setting clearer
standards for granting writs of certiorari, or mandating judicial review of more
kinds of cases, could help to make the Court's caseload less a matter of judicial will
and more a matter of judicial duty.

Second, the Supreme Court and lower courts' power to grant preliminary injunctive
relief, often with nationwide effect, would benefit from legislation that more clearly
defines and constrains this aspect of judicial power and discretion. This has become
a major issue of constitutional adjudication and administration, needing Congress's
attention.

But a third problem can be solved only by judges themselves. The Constitution's
provision for judicial tenure makes judicial retirement largely a matter of judicial
discretion. And judges increasingly time their retirements to maximize the chance
of being replaced by a similarly minded appointee. The trend is understandable, but
in an era when political parties have polarized on judicial method and principle, the
trend also risks undermining the public's trust in judicial neutrality. Given the
profound problems inherent in any system of judicial term limits, the burden falls
on judges themselves to explain their retirement decisions, and to minimize the
dangers of partisan alignment.

This, finally, points to a broader and more fundamental challenge. The most
dangerous constitutional problems of our time reflect a lack of self–restraint—within
our institutions, and toward them. Criticism of the Court is replete with loose talk
of "legitimacy," but judicial legitimacy is not simply a matter of the heckler's veto. It
requires much of the justices, our elected leaders, and the American people
ourselves. For all three, the most important reforms will be self–reforms,
undertaken with a spirit of self–restraint.

and

Statement by former federal judges Thomas B. Griffith and David F. Levi

The Supreme Court is the most admired of the three branches in our democracy and for good reason. Many of the rights and liberties that Americans cherish have been protected by the Supreme Court in its sworn duty to support and defend the Constitution of the United States. The Supreme Court's Equal Protection decisions protecting the civil rights of racial minorities, women and others, its First Amendment decisions protecting free speech and the free exercise of religion, its decisions requiring Presidents to submit to legal process, and its criminal procedure decisions assuring basic due process and protecting against unlawful government searches and intrusions are among the great achievements of any Court in human history. For over 230 years, Americans have looked to their courts and to the Supreme Court in particular as a place where they could seek resolution of difficult legal questions and controversies from neutral, wise, and unbiased judges.

It is not just Americans who revere our courts. All around the world, aspiring democracies look to our independent judiciary as the model for their own judiciaries and as an essential pillar of democracy. They know that the rule of law depends upon an independent judiciary.

The Supreme Court is also the government institution that gives the fullest explanations for its decisions thus exposing itself to criticism. Every decision issued by the Court, with the exception of emergency or routine orders, is explained and supported by reasons in lengthy opinions. Nearly half of the cases decided every term are decided by unanimous vote of the Justices. Where there is disagreement within the Court, those disagreements are fully explored for all to see.

We are two Commissioners who were also federal judges for many years. At a time when our constitutional framework and institutions are under attack from all sides, we take this opportunity to assure our fellow citizens that, from our experience and observation, the courts and judges of this country are doing their level best every day to adhere to their oath of office— to interpret the law properly and deliver justice to the American people without fear or favor.

Federal judges are not politicians. They do not identify with political parties or the president who appointed them. They have different life experiences and bring different points of view to the craft of judging, but they are united in their commitment to listening with an open mind to the litigants before them, studying the issues presented, and fairly finding the facts and applying the law as they see it. On those few occasions where judges lose their way, they fall short of the high standard we set for them.

It is against this background that this Commission was created. Because the Commission was charged with examining proposals by critics of the Court, it might be lost on some that we are examining one of the most, if not the most, effective and justly admired of our institutions. Any proposal to change the role or structure of the Court that fails to take into account its historic success in preserving the rule of law falls short of the mark. We are wary of such proposals, especially those that assume that judging is little more than a political act to advance favored interests. Such proposals misapprehend the role of a judge under the Constitution and do damage to public confidence in the Supreme Court and the courts more generally.

In our view, most of the proposed reforms discussed in the Commission report— including "court packing" and term limits— are without substantial merit; they are not related to any defect or deficiency in the Court or its procedures and they threaten judicial independence. We must not permit the Supreme Court to become collateral damage in the divisiveness that marks the current age. Nor should we fundamentally alter the Court because of disappointment in particular decisions of the Court. There is far more at stake than the outcome of any case.

This is a time in our national history for Americans to protect their constitutional institutions and the precious legacy handed down to us. Democracies are fragile. Even as we may discuss possible reforms, let us do so in the spirit of supporting and defending our Supreme Court and all of our courts as essential components of the rule of law and our great experiment in democracy.

In a sense these are official "concurring opinions" to the commission's complete report.

As I noted last week, I have set forth my own separate views at much greater length here. Many other members of the commission have also been writing shorter pieces, including co-blogger Keith Whittington, Larry Tribe and Nancy Gertner, Caroline Frederickson, and Kermit Roosevelt. Griffth and Levi had an op-ed earlier as well. I assume there will be more to come.