Opinions on Judicial Reform: A Review of the 2021 Supreme Court Commission
Court packing and term limits are untenable—both politically and pragmatically—and would do nothing to resolve the escalating politicization of SCOTUS appointments.
SCOTUS reforms should focus on codes of conduct and transparency as opposed to transformative and headline-grabbing changes.
Although the Presidential Commission report didn’t address issues with the lower courts, those courts face challenges with access to records and judicial vacancies. Judicial reformers should focus their attention beyond SCOTUS.
Sweeping, splashy “reforms” would harm SCOTUS and the Republic
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In April 2021, President Joe Biden created the Presidential Commission on the Supreme Court of the United States to evaluate many of the most popular ideas for reforming the Supreme Court. After receiving thousands of public comments and hearing hours of testimony, the Commission released its final report, which outlined the history of the Court and the likely consequences of various reform ideas, including adding justices to the Court, limiting judicial terms, setting ethical standards and improving courtroom transparency. The two most significant reforms, adding justices and setting term limits, received substantial attention from the Commission and press alike; however, these reforms are unlikely to achieve their aims and, instead, would create new, thornier problems that could undermine public trust in the Court. More prudent reforms, such as improved ethical and transparency standards, would likely increase public trust if properly implemented. Finally, though it was not an issue considered by the Commission, the public would also benefit from reforms to lower federal courts such as improving access to electronic court records and filling judicial vacancies.
During the 2020 U.S. presidential campaign, then-candidate Joe Biden announced that, as president, he would create a commission to study potential reforms to the Supreme Court. Making good on his campaign promise, three months after his inauguration, President Biden issued an executive order to create a commission to research and draft a report on three broad topics: “an account of the contemporary commentary and debate” about the Supreme Court’s role and the current nomination process; a “historical background” of other times when potential Court reforms were seriously considered; and a review of the arguments “for and against Supreme Court reform.”
Throughout 2021, the Presidential Commission on the Supreme Court of the United States (the “Commission”) met six times, received thousands of public comments and heard testimony from dozens of scholars and activists. In December 2021, the Commission submitted its final report to President Biden.
The report consists of five chapters, summarizing the current debate of whether to reform the structure or processes of the Court and scrutinizing several of the most common proposals. Chapter One highlights past efforts to reform the Court. Chapters Two and Three discuss the two most commonly proposed Court reforms—increasing the number of justices and implementing term limits. Chapter Four looks at other reforms that would “reduce the power” of the judiciary, like jurisdiction stripping and imposing supermajority voting requirements for decisions. The final chapter considers changes to the inner workings of the Court, including how the Court handles emergency orders, regulates its own ethics requirements and provides public access to arguments and decisions.
In recent years, the R Street Institute has published numerous studies and commentary on potential reforms to the Supreme Court and the entire federal judiciary, including several of the reforms addressed in the Commission’s report. This paper provides an overview of many of the reforms debated by the Commission and provides an analysis of the reforms we consider to be imprudent and those we believe should be seriously considered. Further, this report looks beyond the Supreme Court and provides suggestions for meaningful reforms to the entire federal judiciary.
With so much attention placed upon the Court and with highly anticipated, politically charged rulings on the horizon, the reforms evaluated in this report are sure to be discussed and debated for years to come.