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The Supreme Court—Is Reform Possible?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

February 4, 2022
By Stephen R. Rolandi

Aside from the growing international crisis in the Ukraine, as well as the continuing Covid-19/Omicron variant pandemic, the topic arguably front and center is the United Supreme States Supreme Court and the panoply of issues that are now before it this term, including: voting rights, reproductive choice, vaccine/mask mandates, affirmative action in college admissions and many others.

Of additional interest is the current speculation as to who President Biden will nominate this month to fill the pending vacancy created by the announced retirement of Associate Justice Stephen G. Breyer—Mr. Biden, during the 2020 Presidential campaign, had pledged to nominate an African-American woman jurist to the high court.     

Readers may recall that during the 2020 Presidential campaign, then candidate Joseph Biden had also pledged to appoint a blue-ribbon commission to study and recommend potential changes to the United States Supreme Court (SCOTUS).

This is the highest court in the Federal judicial system, whose rulings are studied with great interest by lawyers, law professors and law students, as well as political scientists and other non-legal professionals. It was Associate Justice Robert H. Jackson (1892-1954) who remarked about the high court in his concurring opinion in the 1953 case of Brown v. Allen regarding jury discrimination by the state of North Carolina, that “We are not final because we are infallible, but we are infallible because we are final.” It can be said that Supreme Court decisions have a great impact on American government, public administration and society.

On April 9, 2021, President Biden issued Executive Order 14023 which formed the Presidential Commission on the Supreme Court of the United States.  This 36 member bi-partisan commission, co-chaired by former White House Counsel Robert Bauer and Yale Law School Professor Cristina M. Rodriguez, was charged to provide a bipartisan analysis of the “principal arguments in the contemporary public debate for and against Supreme Court reform.” Topics that the Commission examined included the following:

  • The Court’s role in the American constitutional system, including judicial review;
  • Length of service and turnover of justices on the Court;
  • Membership and size of the Court—currently, the Supreme Court consists of 9 members who hold life-time appointments;
  • The current confirmation process by which Supreme Court nominees are selected;
  • The Court’s selection of cases to be heard, as well as the Court’s rules and practices.

To ensure that the Commission’s final report would be comprehensive and informed by a diverse spectrum of views, several public meetings were held to hear the views of other legal and constitutional experts, groups and other interested individuals who hold varied perspectives on the issues being examined. The Commission received testimony from numerous law school professors as well as from organizations such as the American Civil Liberties Union; Center for American Progress; Project on Government Oversight; NAACP Legal Defense and Educational Fund; and the Regulatory Action Center of the Freedom Works Foundation.

Last fall, the Commission released an interim report; and before the holidays, on Dec. 7, issued its final report which contained an extensive review of the context and history of issues—particularly the size of the membership of the Supreme Court—that may be used going forward in future proposals to introduce changes.

The Commission’s final report did not endorse “court-packing”—increasing the Court’s size—nor term limits for the justices, but the tone of the report was seen as more favorable to the idea of term limits; however, the Commission seemed to be less favorably disposed to the idea of expanding the size of the Court from its current membership of nine—which was set by Congress in 1869. The Commission was divided as to whether enacting service term limits could be accomplished by a constitutional amendment or a congressional statute alone.

The Commission stopped short of actually endorsing any reform proposals at all, with the possible exception of continuing the pandemic-era practice of providing public access to live audio of oral arguments presented to the Court.

In addition, the Commission also considered other reforms, such as limiting the scope of judicial review (“jurisdiction-stripping”); reforming the shadow docket; creating a code of ethics for the Supreme Court, among others.

On all the issues considered by the Commission, the final report offered a helpful, detailed and balanced overview of reform proposals that have been advanced over the years, as well as a critique of these proposed reforms. I agree that it will be a great resource for scholars, attorneys, political scientists, legal commentators and others interested in these issues.

It needs to be pointed out that the final Commission report will not likely generate any significant political momentum for major reform.

Time will tell if Congress—as well as ultimately state legislators and the voters—will want to advance reform proposals described in this report. If one is interested in reading the final report, it can be viewed at: https://www.whitehouse.gov/pcscotus. 

Postscript: If one is interested in learning more about the workings of the Supreme Court, I would recommend reading any works by Pultizer Prize winning author Linda Greenhouse, in particular The U.S. Supreme Court: A Very Short Introduction as well as her recently published Justice on the Brink. Although a little dated now, Jeffrey Toobin’s book The Nine: Inside the Secret World of the Supreme Court, is also very informative.

Author: Stephen R. Rolandi retired in 2015 after serving with the State and City of New York. He holds BA and MPA degrees from New York University, and studied law at Brooklyn Law School. He teaches public finance and management as an Adjunct Professor of Public Administration at John Jay College of Criminal Justice (CUNY) and Pace University. Professor Rolandi is a Trustee of NECoPA; President-emeritus of ASPA’s New York Metropolitan Chapter and past Senior National Council Representative. He has served on many association boards. He is a frequent guest commentator on public affairs and political issues affecting the nation and New York State. You can reach him at: [email protected] or [email protected] or  914.536.5942 or 212.237.8000.

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