The SCOTUS Commission Report

Last April the RNHA covered the Biden administration’s pronouncement of their Commission on the Supreme Court (Commission); a campaign promise meant to address the Court reform debate following the polarizing confirmation of Justice Amy Coney Barrett. This Commission identified, where possible, recommendations to improving the institutional functionality and public perception of the high Court.

The 180-day final report of the 34 member Commission, released on December 07, 2021, addressed four issues of particular interest, those being: potential expansion or restrictions on the size of the Court, term limits, their judicial powers, and the role of the Court’s internal procedures.

As it relates to Court expansion, a popular and inescapable notion for Court restructuring, many commissioners cautioned its function due to the potential retrogressive implications for democracy. The efforts of internal actors to alter their institutions so as to make more favorable decisions has been a historical trademark of authoritarian regimes, whereby “court-packing and wholesale elimination of courts that displease leaders”

While opportunistic expansion practices have become noteworthy of countries abroad, the United States also had their own, prominent domestic example when, in 1937, President Franklin D. Roosevelt attempted to expand the Court to “add a number of FDR loyalists to the court” to decide cases which concerned his programs favorability.

Positives on the other side of this argument contend that expansion may perhaps provide greatly needed calm to the “controversy surrounding the Court… in order to deter future conduct” of norms violations by opposing parties, and possibly increase the chances of greater diversity in thought and hearing of cases.

While very little agreement was found in the proper role of Court expansion, much was agreed to in the realm of term limits for justices of the Court. In this age of polarization engulfing the subject matter of the Court, bipartisanship may be a key indicator of the broad consensus of positive reforms which depart from the status quo. However, objectors note their concerns of justices influenced by their term-end-date, or the wrongful supposition by the public of their alliance with their appointing president or party every four years given the perceived partiality.

A third point of contention in need of addressing was the permitted extent by the Court’s judicial powers, with some of the areas in question being the Court’s range of jurisdictional authority, and possible limitations by way of jurisdiction-stripping. To quote the Commission’s report, jurisdiction stripping may serve “the ideological goals of nearly any constituency with the political capacity to enact it… we are skeptical that the aim of promoting more democratically accountable control of public policy is achievable solely by limiting the jurisdiction of the Supreme Court”, thus this path may have more negative future implications.

The Commission’s final point considered the prospects of improving internal procedures for the Supreme Court so as to improve their perception as an impartial judicial body. This report notes that most of the disputes surrounding the Court tend to concern the lack of reviewability in emergency orders, judicial ethics, and the Court’s accessibility to the public, but on the whole recommends progressive measures to increasing code of conduct and transparency for the public’s benefit.

While this Commission’s report was not a whole-scale list of recommendations to revise the Judiciary, and Supreme Court particularly, but rather a more conservative approach to maintaining its credibility in a modern era.