the Presidential Commission on the Supreme Court of the United States

“ If we had the good fortune to write on a blank slate, Senate Rules should require 60 votes to confirm a Supreme Court Justice in order to force, at least in most circumstances, a bipartisan consensus not only on the back end, for the final vote, but also on the front end, by necessitating more consultation by the president with the minority party leadership in the Senate. ”

“ The access that plaintiffs, criminal defendants, and other public-interest clients have to this specialized group of repeat players is severely limited. For one, corporate-defense firms routinely charge more than $1,000 per hour for their services, and a single cert petition can cost a client hundreds of thousands of dollars. Even if attorneys at high-powered appellate practices have some inclination to take on plaintiff-side work, they often will not due to the fact that their firms represent the corporations, or at least the antiplaintiff positions, on the other side of the case. ”

“ In other words, the entire ecosystem surrounding the Court looks a lot less like the American public than we might hope. For the development of the law, this limited diversity can make the Court “woefully inattentive to its impact on underrepresented groups.” And on the most basic level, as this small and elite institution makes laws for a large and diverse country, many Americans do not see people like them regularly participate in the process. ”

“ This imbalance in the small group of advocates who have the ear of the Court has serious consequences for the Court’s agenda and the public’s perception that the Court gives each party before it an equal hearing. In turn, the stakes for the country are high: not just the rights of workers, consumers, and other plaintiffs, but also the credibility and legitimacy of the Court in the eyes of a public that already believes their government is overly aligned with the interests of large corporations. ”

“ If the Justices are blind to the actual funders of the amici then they have no way to evaluate critically the factual submissions coming from them. Current Supreme Court rules on amicus briefs require a statement of interest of the amicus and disclosure only as to whether the party contributed financially or otherwise to the brief. The rules do not bar anonymously-funded amicus briefs and they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party) . ”

“ More funding for these offices would strengthen the legal representation of low-income and other marginalized people in general—a worthy goal in its own right—but it could also facilitate the development of a larger, more experienced public-interest appellate bar. Just as corporate law firms and the Solicitor General’s office do for most prominent appellate lawyers now, better-funded Legal Aid and Public Defender offices could create the kinds of opportunities for training, specialization, and, eventually, repeat advocacy for career publicinterest lawyers. ”

“ Some of the best advocates before the Supreme Court are criminal defense attorneys, especially in the specialized capital defense bar. But the attorneys in the criminal defense bar generally have fewer resources to support specialized Supreme Court litigation than do their prosecutor counterparts. Government prosecutors also have more strategic flexibility about which issues to litigate in a case, whereas criminal defense attorneys have an ethical duty to zealously represent the interests of their individual client whose personal liberty is at stake. ”

“ Homogeneity among Supreme Court advocates is by no means limited to race and gender. The small handful of elite appellate lawyers who argue most cases before the Supreme Court are not only overwhelmingly white and male—they also tend to represent the largest corporations in the world. Attorneys at corporate-defense firms are often conflicted out of representing plaintiffs, even if they would be inclined to do so otherwise. ”

“ The Chamber of Commerce and other influential industry groups—not to mention many of the largest corporations in the country themselves—have hired most of the firms with elite appellate practices, making it difficult or impossible for attorneys at those firms to represent contrary interests and positions. Some might reasonably suggest that the rise of excellent law school supreme court clinics mitigates this problem, but, unfortunately, that is not the case. ”

“ To be sure, the Justices are the ones who formally vote on the question whether review is warranted but given the thousands of petitions to be considered and all of their other responsibilities, especially deciding the cases granted review, the Justices themselves spend no time at all on the vast majority of cert petitions and only minutes even on those relatively few petitions in which review is seriously considered. The Justices instead must, as they do, depend heavily on their law clerks to identify which cases warrant the Court’s attention. ”

“ The Brennan Center is a nonpartisan law and policy institute that works to strengthen the systems of democracy and justice so they work for all Americans. The Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. ”

“ Two Democrat interviewees and one Republican interviewee support specific questioning but stop short of asking about how a nominee would have voted in past cases. The Republican interviewee noted the appropriateness of asking a nominee, “Had you been on the Court in 1973 and had the Roe factual record before you, how would you have approached the case,” distinguishing that question from a precise question about how the nominee would have voted.
Approximately 15 interviewees – both Democrats and Republicans – support questions about the “general philosophy of judging.” ”

“ The Court should hire a staff of career attorneys whose exclusive responsibility would be to provide the Court with assistance in deciding which cases warrant the Court’s review. The office would be staffed by seasoned, highly accomplished attorneys with significant experience in appellate and Supreme Court advocacy. ”

“ Richard H. Fallon, Jr., joined the Harvard Law School faculty as an assistant professor in 1982 and is currently Story Professor of Law. He is also an Affiliate Professor in the Harvard University Government Department. Fallon is a graduate of Yale University and Yale Law School. He also earned a B.A. degree in Philosophy, Politics, and Economics from Oxford University, which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as a law clerk to Judge J. Skelly Wright and to Justice Lewis F. Powell of the United States Supreme Court. ”

“ Perhaps it is not surprising, therefore, that the Justices cite these briefs to support their factual claims ... increasingly regularly. In my 2014 study on the subject I found that one in every five citations to amicus briefs by the Justices were used to support a factual assertion. The Justices seem to have only picked up the pace since then. A 2020 study of amicus citations found citations to amici in 65 percent of the Court’s cases (a record) , and “most of all” the justices relied on briefs that “provided real world information.” ”

“ Before joining the Rutgers faculty, Boddie was Director of Litigation for the NAACP Legal Defense & Educational Fund, Inc. and supervised its nationwide litigation program, including its advocacy in several major U.S. Supreme Court cases. An honors graduate of Harvard Law School and Yale, she also holds a master’s degree in public policy from the Harvard Kennedy School of Government. Boddie clerked for Judge Robert L. Carter in the Southern District of New York. She is a member of the American Law Institute and an American Bar Foundation Fellow. ”

“ Given this landscape, the government, starting with this Commission and this White House, can and should encourage the development of specialized public-interest and plaintiffs’ lawyers—first and foremost by advocating for increased funding to organizations that do this appellate work. To start, Legal Aid organizations around the country provide invaluable services to low-income people in the areas of housing, employment, immigration, criminal justice, public benefits, and more. ”

“ Walter Dellinger is the Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers. He was named one of the 100 Most Influential Lawyers in America by the National Law Journal and is the recipient of Lifetime Achievement Awards from the American Lawyer, the American Constitution Society and the Mississippi Center for Justice. ”

“ Several witnesses who testified before the Commission noted that recent debates over Supreme Court reform have taken place amidst controversies surrounding the processes by which Justices are nominated and confirmed. The evaluation of proposals for Court reform may thus require both attention to existing problems with the confirmation process and consideration of how a proposal, if implemented, might affect that process. ”

“ The Committee does not endorse prescribing a public standard for appointments, but we support continued expansion of the group to which the Court looks for appointments. In particular, greater diversity likely would result if consideration were given to more attorneys who are not former law clerks, especially advocates in the specialized appellate bars of state courts and other federal courts and law professors. ”

“ Procedurally, no Member of the Committee, including the Chair or Ranking Member, should be allowed to instruct a nominee not to answer a question. A Member or Members may dislike the questions posed by a colleague, but it is up to the nominee to decide whether to answer. ”

“ Such work is necessarily both secondary to their need to earn profits and limited by the professional requirement that they avoid any formal conflicts of interests with their paying clients as well as by the practical need to avoid taking on pro bono causes that might upset their business clients that pay full freight for legal representation. ”

“ Virtually all of those clinics are affiliated with the very same corporate-defense law firms that employ the expert Supreme Court advocates, making it difficult for the clinics to take a position against, for example, a major bank in a case concerning financial services regulation. ”

“ Nancy Gertner was United States District Court Judge (D. Mass.) from 1994–2011. She retired to join the faculty at Harvard Law School and has been a Visiting Lecturer at Yale Law School. Prior to 1994, Gertner was a civil rights and criminal defense lawyer. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, she has published widely on sentencing, discrimination, forensic evidence, women’s rights, and the jury system. Her autobiography, “In Defense of Women: Memoirs of an Unrepentant Advocate,” (Beacon Press) was published in 2011. ”

“ As discussed at the first public meeting, the Commission divided itself into subcommittees, denominated as “Working Groups,” to consider testimony and comments from outside experts, organizations, and the public, and to further research and analyze the following topics:
The Genesis of the Reform Debate; the Commission’s Mission ”

“ Report and Recommendations of the Presidential Commission on Election Administration” (Presidential Commission on Election Administration, 2014) ; “The State of Campaign Finance in the United States” (Bipartisan Policy Center, 2018) ; and “Democratizing the Debates” (Annenberg Working Group on Presidential Campaign Debate Reform, 2015) ; ; He is a Contributing Editor of Lawfare and has published opinion pieces on constitutional and political law issues in The New York Times, The Washington Post, and The Atlantic, among other publications. ”