Presidential Commission on the Supreme Court of the United States

“ On the one hand, especially because judges and Justices sometimes must decide issues about which reasonable people disagree, there is an argument that the judiciary must not be entirely independent of the elected branches of government. Some aspects of our system—including not only the appointment and confirmation process, but also Congress’s role in setting the Court’s budget, jurisdiction, and size, and its control of the impeachment process—ensure that the judiciary is not entirely independent but is to some degree responsive to elected officials and therefore to public opinion. ”

“ Opponents of term limits are especially critical of a statutory approach, arguing that if term limits may be changed by statute, then an angry Congress could punish the Court by reducing the term of office anytime it chose to do so. Critics of the statutory approach argue that it is precisely to avoid such risks that the Constitution does not permit Congress to impose term limits by statute. On this view, the degree of consensus required for a constitutional amendment provides important security against the composition of the Court being manipulated for partisan or ideological reasons. ”

“ In foreclosing all judicial review of legislation, Congress might be viewed as effectively claiming authority to determine that any covered statutes—such as one imposing a wealth tax or those banning abortions—were constitutionally valid. Proponents of such legislation, moreover, would likely defend it as enhancing political democracy and accountability by enabling Congress, as a democratically accountable institution, to authoritatively resolve a constitutional issue about which reasonable minds could be expected to differ. ”

“ A deferential standard of judicial review would be functionally similar to, but distinct from, a supermajority voting requirement. It would achieve greater deference than current practice by requiring greater subjective certainty as to a law’s unconstitutionality from each judge before voting to invalidate a law. But at the Supreme Court only a simple majority of Justices would need to vote in favor of unconstitutionality for a statute to be invalidated. By comparison, a supermajority voting requirement is what some scholars call a “hard solution.” ”

“ In the view of some proponents of judicial disempowerment, the modern Supreme Court has injected itself into spheres appropriately left to democratic argument and resolution—for example, by invalidating laws that prohibit or restrict abortion or legislation designed to protect voting rights. For these critics, the Court’s fundamentally “countermajoritarian” character is in tension with the basic commitments of a democracy; an unelected judiciary, in this view, acts undemocratically when it invalidates the acts of democratically elected representative bodies. ”

“ Legitimacy might refer to the general level of support that the Court has among the people of the United States, perhaps as reflected in public opinion polls. Or, in a related and more specific use of the term, it might refer to whether people who disagree with a decision by the Court are willing to comply with it.
Those who use legitimacy in one of these ways commonly say that the Court’s legitimacy is crucial to the institution because the federal judiciary has no military or other way to coerce people to comply; [43] the judiciary must rely on others to adhere to its decisions. ”

“ And term limits by themselves cannot ensure that the President will nominate high-quality individuals. Those who object to term limits believe that the Supreme Court has functioned with life tenure ever since the Founding, and switching to a system of term limits poses major design challenges and could well further politicize the confirmation and selection process while also affecting the culture and standing of the Court. A broader concern they hold is less about term limits than about any reform that weakens one of the Constitution’s two express protections of judicial independence. ”

“ It is possible that legislatures might enhance their relevant skills and resources if courts no longer played such a dominant role, for example by expanding legal staff dedicated to constitutional analysis. To the extent that jurisdiction stripping reflects majoritarian impulses while depriving individuals of any right to seek redress in court, it might also make it harder for minorities to vindicate individual rights that, in some instances, are essential to constitutional democracy itself. ”

“ As observers, including members of Congress, have emphasized, internal procedures and practices at the Court can have a significant external impact: They affect perceptions of the Court’s impartiality, the credibility of its rulings, and the clarity of its guidance for lawyers and for other courts. And they have real consequences for the parties in each case, as well as for the many people and institutions affected by the federal laws or constitutional rights at issue. ”

“ Those who critique the Supreme Court’s power emphasize that when the Court acts to invalidate statutes, its decisions “have an unusually high degree of finality or ‘strength’ [] by global standards.” [5] This high degree of finality derives in part from the Court’s approach to judicial review, known as “judicial supremacy.” [6] That is, the Court has held that it has the last word on constitutional interpretation and that its decisions bind not only the parties in a particular case but also future action by the President, Congress, and the states. ”

“ Most prominent jurisdiction-stripping proposals today would shield specific, substantively defined issues, legislation, or policies from judicial review by the Supreme Court, by all federal courts, or by all federal and state courts. The goals of such proposals are overwhelmingly substantive in nature—to protect the particular laws in question from judicial invalidation. Nevertheless, proposals to curb judicial jurisdiction can also have more abstract goals, involving the redistribution of decisionmaking authority within our scheme of government. ”

“ It is not obvious why the Court is best served by an exemption from what so many consider best practice. To bring the Court into alignment with other courts and entities, some observers argue that the Supreme Court should adopt a code of conduct—either the existing Code applicable to other judges or its own version of a code—or that Congress should impose one. ”

“ Critics of Court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add Justices to bring the Court more into line with their ideological stances or partisan political aims. Court packing, in the critics’ view, would compromise the Court’s long-term capacity to perform its essential role of policing the excesses of the other branches and protecting individual rights. ”

“ To the extent that new Justices have different views of the law than their predecessors, and to the extent that they are willing to overrule or narrow precedents with which they disagree, more turnover on the Supreme Court could lead to more frequent doctrinal shifts, or even cycles in which major precedents are discarded only to be reinstated later, perhaps in very short order. To opponents of term limits, the current system provides sufficient turnover and there is little reason to adopt a new and untried system simply to generate more turnover. ”

“ Absent such a mechanism, the repeated failure of the Senate to confirm any nominee would undermine a major justification for staggered term limits: that each President be entitled to the same number of regular nominations. Designing a structure to address the risk of impasse, however, is not an easy matter. That structure must not give too much effective power to the President but also address the risk of repeated confirmation impasses. And the difficulty of reforming the confirmation process is among the reasons opponents of term limits reject the reform. ”

“ Again, proponents of term limits do not seek partisan balance. According to proponents, if a party wins the White House more often, its Presidents should have the opportunity to nominate more Justices, though this opportunity may be checked, as with all judicial appointments, by the Senate’s advice and consent. But, proponents emphasize, our current system allows parties to shape the composition and influence the direction of the Court to a degree that does not necessarily reflect their record of electoral success over time. ”

“ Part of the reason the Good Behavior and Appointments Clauses are best understood to deny Congress the power to modify life tenure by statute, in this view, is to protect the structural principle of judicial independence that underwrites Article III of the Constitution. ”

“ Any ultimate assessment of the systemic consequences of supermajority voting requirements will depend on one’s perspective on the role the Supreme Court and the federal judiciary ought to play within our system of government and on how well the democratic lawmaking process and its various institutions currently operate. Evaluating these proposals will hinge in large part on one’s view of the relative abilities of courts and legislatures to protect constitutional rights. ”

“ This history, which dates back to the Founding and encompasses formative periods of the nation’s history, highlights how lawmakers and the public frequently have been keenly attentive to and engaged in debate about the role the Court plays within the constitutional system. Reform debates have reflected the institutional needs of an expanding nation, and they have involved partisan conflict and philosophical struggle over substantive constitutional values and the power of government to serve the needs of the people. ”

“ The controversies surrounding the Court are heightened by the combination of—as one witness put it—a “very powerful Supreme Court” and “a nearly-impossible-to-amend constitution.” [27] Consequently, when the Court generates “a firestorm of controversy, the only practical avenue for overturning decisions of the Court has been through changing the judges who sit on that Court.” [28] The fact that Justices have life tenure—and therefore often serve for upwards of thirty years in the modern era—only heightens the stakes of who joins the Court. ”

“ First, Court rulings that statutes violate the Constitution typically require exercising judgment about the meaning of the Constitution, over which reasonable people might disagree, as is often illustrated by divisions among the Justices themselves in constitutional cases. Second, in cases of reasonable disagreement over whether a law comports with the Constitution, principles of democracy necessitate that Congress and the executive branch have opportunities to check the judgments of an unelected judiciary and to advance their own views about what the Constitution requires. ”

“ In the main, the opponents argue that the current system of appointing and protecting the independence and neutrality of federal judges and Justices, through life tenure, has worked well for over 230 years. The independent federal judiciary, protected by lifetime tenure, is one of the most signal accomplishments of our constitutional system. Opponents of term limits for Supreme Court Justices argue that proponents therefore have a heavy burden of persuasion when they seek to remove what opponents regard as an important pillar of judicial independence. ”

“ Short of constitutional amendment, some argue that Congress could still do more to resist judicial supremacy, though that, too, would likely face a critical audience from the current Supreme Court. Some proponents of reducing the power of the Court argue that the Court’s commitment to judicial supremacy should not be a concern and that statutory reform to facilitate Congress’s ability to assert its own constitutional authority would be worth trying. ”

“ The history of the “one supreme Court” language at the Founding and its interpretation over subsequent centuries supports the view that the Court must operate in some meaningful sense as a single court. But nothing in the history the Commission has reviewed surrounding the drafting or adoption of this “one supreme Court” provision reveals the thinking that underlay the creation of one Supreme Court or resolves the question whether the Court could sit in smaller panels or rotating groups, subject to a potential en banc review process. ”

“ Whether Congress could impose some form of supermajority voting requirement on the Supreme Court without a constitutional amendment is a difficult question. [116] As with jurisdiction-stripping legislation discussed earlier, a central issue would be the constitutional source of Congress’s power. Again, like jurisdiction stripping, one possibility is the Exceptions and Regulations Clause of Article III, which grants the Supreme Court “appellate Jurisdiction, as to both Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” ”