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Court Reform and the Biden Commission<\/strong><\/p>\n Kermit Roosevelt III<\/p>\n <\/p>\n The Biden Supreme Court Reform Commission and its report have been criticized by both the right and the left. That might be a sign that it performed its job in a bipartisan way\u2014which I think it did. But it also might be a sign that people on both sides misunderstand the nature of the commission and the report. So here I want to try to explain them, and also add my personal views, based on my experience as a Commissioner.<\/p>\n First, some people criticized the commission for not making recommendations. That\u2019s true, but the commission\u2019s charge was not to make recommendations, so faulting it for that is really asking for a different kind of commission. We could have had that\u2014Biden could have decided that something was wrong with the Court and created a commission to tell him the most effective way to fix it. But that would have made sense only if he was already convinced that there was a problem that needed solving, and that he knew what it was. And then he would probably have assembled a relatively small group of people who also already agreed on the existence and nature of the problem.<\/p>\n Biden was doing something very different, which I think is to his credit. He was genuinely open-minded about the Court. He knew that people had concerns about it, and he wanted a commission to evaluate those concerns and the costs and benefits of different proposed solutions.\u00a0 For that job it made sense to have a relatively large bipartisan commission, and that\u2019s what we had. It was a sincere and good-faith attempt to get the best, most comprehensive assessment of the situation.<\/p>\n And I think the commission did a good job of fulfilling its charge. We surveyed the potential problems, and analyzed the proposed solutions and the arguments for and against them. Generally speaking, we gave the drafting of particular arguments to people who really believed in them, so that they would be presented in their strongest form, and we definitely had people on both sides of every major issue. Now some political actor has to look over this report and decide which reforms, if any, they want to pursue. If that next step doesn\u2019t happen, then some of the critics may be proved right: the ones who said it was a diversion and that commissions are where reform goes to die. But I hope and believe that Biden is going to read the report and draw a conclusion about what to do.<\/p>\n What should that conclusion be? Ultimately, that\u2019s a political decision, but having spent almost a year as a Commissioner going over these issues, I have some thoughts. My overarching principle is that whether a reform is needed, and what that reform should be, depends on what you think the problem is. So I\u2019m going to go through some different articulations of the problems and solutions.<\/p>\n First, a problem might be that the Supreme Court is handing down decisions I don\u2019t like politically. Since that\u2019s a weak objection, let\u2019s also say I think they are incorrect as a matter of constitutional law. For instance, the Court is giving religious freedom more protection than I think it\u2019s entitled to under the First Amendment. The only real way to change that now is to change the composition of the Court\u2014expand it. So, one framing is: consider Court expansion as a solution to the problem of decisions I don\u2019t like.<\/p>\n Even with the idea that these decisions are legally incorrect, this is the weakest case for reform. The Court is, in our constitutional design, ultimately responsive to the elected branches, because they appoint the Justices. National majorities should be able to have some influence on the Court, over time. But I don\u2019t think the elected branches should add new Justices whenever they don\u2019t like what the existing ones are doing. They do have that power, but circumstances would have to be very extreme for me to say the Court has gone far enough astray for it to be warranted. In some ways, Court expansion can helpfully be analogized to impeachment\u2014neither of them should be the remedy for ordinary disagreement.<\/p>\n The second framing is a little different. The Supreme Court is handing down decisions I don\u2019t like because it was constituted in an unfair way. I think the decisions are wrong, and I think we\u2019re getting them because of some problem with the appointments process. What is that problem? There are two things people identify. First, if we go back to the appointment of Clarence Thomas, the longest-serving current Justice, we have four Republican presidential terms (Bush I, Bush II x2, Trump) and four and a quarter Democratic ones (Clinton x2, Obama x2, Biden). (For flavor you can throw in the fact that the Democratic candidate won the popular vote in seven out of nine of those elections, although the significance of that is less clear.) So you might think there would be a relatively even balance between Democratic and Republican appointees. But in fact under those Presidents we had 7 Republican appointments and 4 Democratic ones, and we now have a court with a 6-3 Republican tilt. (President Biden will now presumably be able to replace Justice Breyer, which will make the total appointment tally 7-5 but not affect the 6-3 tilt.) So viewed just from a statistical perspective, it looks unbalanced. Second, there\u2019s the more specific issue of the refusal to allow Obama a third appointment, and the rush to confirm Amy Coney Barrett. So the complaint here is based on the party system, and it is that the other side has manipulated the process. Again, the straightforward solution is expansion. So the second framing is this: consider Court expansion as a solution to the unfair advantage held by the Republicans.<\/p>\n I think this argument is perfectly fine. The Court is out of balance statistically, and that\u2019s in part because Republicans aggressively used the powers they had to increase their appointments. Court expansion is a power that Congress and the President have, and it can be used to increase Democratic appointments. I was surprised by the resistance to this among what I would call the liberal institutionalists on the Commission\u2014that is, people who identify as liberal but still said \u201cthis would be a dangerous norm-breaking escalation that would trigger a cycle of reprisals.\u201d<\/p>\n That response strikes me as profoundly na\u00efve and mistaken in almost every regard. First, is it an escalation? Maybe, but not as much as you might think. Saying \u201cwe will not consider any Obama nominee\u201d is actually manipulating the size of the Court for partisan advantage. The Senate effectively took it down to eight and then back up to nine. So expansion has been done already\u2014not by a majority controlling two branches of government but by one house of Congress composed of Senators representing a minority of the American people. Second, would it trigger a cycle of reprisals? Maybe, but the existing process is already a cycle of escalating reprisals, where each side justifies itself with sincere claims that the other is behaving worse. And to me there\u2019s no doubt at all that Republicans would enlarge the Court if they found it necessary to maintain control. Expansion now wouldn\u2019t trigger reprisals except in the sense that as long as the Republicans are in control they don\u2019t need to do anything. Last, game theory suggests that if the other side takes advantage of you, the best strategy is to retaliate to show them that there will be costs if they keep doing it. In sum, I\u2019m basically neutral on the framing that advances court expansion as a solution to an unfair Republican advantage.<\/p>\n But this also brings up another possible solution, which is term limits. The point of term limits is to regularize the appointments process so that each President gets two appointments per four-year term. Then we don\u2019t have to worry about strategic retirements and chance deaths and partisan hardball, and the composition of the Court will eventually come in line with national elections, which is a far preferable system. So going in, and for much of the process, my view was that the right answer was to say \u201cWe\u2019re not going to try to change the current Court. But the process that got us here is broken, and we need to fix it, and term limits are the solution.\u201d<\/p>\n Brief digression: I think term limits can be enacted by statute. I didn\u2019t think this going in, because it seemed obvious to me that taking a Supreme Court justice out of the regular decision process removed that Justice from office. Surprisingly, that isn\u2019t the way our law or our practice understand it. Current 28 U.S.C. \u00a7 371 provides two options for federal judges, including justices, who meet the service and age requirements. They may \u201cretire from the office\u201d under \u00a7 371(a), upon which they no longer hold the office but continue to receive an annuity equivalent to their salary at the time of retirement. Or they may \u201cretain the office but retire from regular active service\u201d under \u00a7 371(b) and \u201ccontinue to receive the salary of the office\u201d if they perform a different set of duties, spelled out in later sections. Retired Justices do not participate in Supreme Court decisions but may decide cases on the lower courts; senior judges do not have to decide cases at all. Yet Booth v. United States[1]<\/a> held that these people do still \u201chold the office\u201d for the purposes of Article III, section 1.<\/p>\n So there\u2019s very straightforward argument for a system whereby Justices retire from active service after eighteen years. The Good Behavior Clause says that judges \u201cshall hold their offices during good behavior.\u201d If you want to know whether doing something to a judge violates that clause, the threshold question is whether the judge still holds the office. If they do, there can\u2019t be a violation. And a unanimous Supreme Court has told us that senior judges still hold the office. Does the power to change judicial duties without running afoul of the Good Behavior Clause threaten judicial independence? Yes, if it can be used selectively, or as punishment\u2014but I think that general structural principles of separation of powers prevent that, just like they prevent other forms of punishment that don\u2019t amount to removal from office, like taking judicial clerks as reprisal for unpopular decisions. Consistent and lengthy fixed terms are adequate to protect judicial independence in every other democracy in the world.<\/p>\n Anyway, the third framing is this: \u201cThe problem is that the composition of the Court depends on chance, strategic retirement, and partisan hardball, and the solution is term limits.\u201d<\/p>\n I think that\u2019s pretty clearly right, and I still believe it. But I ended up going farther, too. And what drove me there really was the liberal institutionalists again, because in response to the suggestion that term limits could be achieved by statute, they said \u201cWe need to be very careful about this. We\u2019ve seen democratic backsliding occur in other countries where the composition of the judiciary could be changed by an electoral majority. We don\u2019t want to open that door.\u201d<\/p>\n That made me think that the situation is much worse than I realized, because again, these distinguished scholars are either profoundly na\u00efve or just in denial about what\u2019s happening. The United States is experiencing democratic backsliding. You can listen to the European think tank IDEA, which added us to its list of backsliding democracies,[2]<\/a> or you can look at the waves of attempts to modify the electoral process, directed at both the process of voting and the process of counting votes and certifying results. This is happening, and it\u2019s happening with the active participation of the Supreme Court, in decisions like Shelby County[3]<\/strong><\/a><\/em> and Brnovich<\/em>.[4]<\/a> And like I said before, the Court is handing down those decisions because its composition was changed by one house of Congress\u2014by Senators representing a minority of the population. They shrank the Court to eight and then they brought it back to nine. But now if you say \u201cmaybe we should try to fix the appointments process so that doesn\u2019t happen again,\u201d distinguished liberal thinkers will say \u201coh, no, that would set a dangerous precedent and undermine the norms that safeguard our hallowed institutions.\u201d<\/p>\n That\u2019s sleepwalking into authoritarianism. And it made me realize that if I want to defend democracy, the place to stand is not with the liberal institutionalists. It\u2019s farther left. So that\u2019s the final framing: the problem is that our democracy is under attack and the Supreme Court is participating. Again, court expansion is the solution. And that\u2019s where I came down in the end. This is a moment of crisis. Court expansion does strike me as extreme. It\u2019s really a confession that the ordinary system has failed. But I\u2019m afraid that\u2019s the truth, and desperate times require desperate measures.<\/p>\n <\/p>\n [1]<\/a> 291 U.S. 339 (1934)<\/p>\n [2]<\/a> See International Institute for Democracy and Electoral Assistance, The Global State of Democracy 2021: Building Resilience in a Pandemic Era 8 (2021) (including the United States among \u201ccurrently backsliding countries\u201d).<\/p>\n [3]<\/a> Shelby County v. Holder, 570 U.S. 529 (2013).<\/p>\n