Check out the website: https://lenspoliticalnotes.com Look at the recent Political Notes and Len’s Letters on the website. Lens’ Letter #32 What the Dems should do about the Supreme Court, Len’s Letter #33 What the Democrats should do about the Federal Courts.
May 29th 2021 Len’s Letter #41 The Presidential Commission on the Supreme Court of the United States
2021 The Third Branch of Government
Bob Bauer Christina Rodriguez
NYU Law School NYU Law School
In early April, Joe Biden issued an executive order forming this Commission to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
“[The Commission] will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining.”
I qualify as an interested individual. That’s true for most of you. A few readers quality as an “other expert.” I have nevertheless expressed my view by sending a copy of Len’s Letter #32 to the two co-chairs of the Commission. I will express my opinions again. (Repetition, judiciously applied, has its uses in instruction).
Here are my thoughts:
- The size of the Supreme Court is not fixed. For reasons practical and political the size of the Court has changed though the changes occurred during the first 100 years of the Republic. The only major effort to change the size of the Court during the last 100 years was by FDR and is generally considered a failure. It was not a failure. FDR did not change the size of the Court, but his pressure led to a change in the Court’s pattern of decisions and its willingness to allow New Deal legislation.
- Expand the Supreme Court to 11 members. Activists have proposed expanding the Court to 13 members. Such a change would allow Joe Biden to make four new appointments and create a majority of Democratic appointed Justices. Critics describe this a power play to gain control of the Court. Expansion to 11 members could not be described as such a power play. Expansion to 11 members would right a wrong. It would offset the Senate’s refusal to consider Barack Obama’s Supreme Court nomination of Merrick Garland. That refusal was an abuse of power, a wrong which should be righted.
- Create a minimum age for a Supreme Court appointee. Our propensity for appointing relatively young jursits to the Supreme Court could lead to five of our current members of the Court being among the longest serving Justices in American history and one being the longest service Justice ever. Those who see such longevity as a problem have proposed term limits for Supreme Court justices or a retirement age — solutions that would require a constitutional amendment. Setting a minimum age can be done by statute.
If the minimum age for appointment to the Supreme Court were 62, a Justice appointed at that age would have served for 21 years by age 83. We might be able to create a norm of a 20-year term knowing that Justices would stretch that a little bit.
- Extend the minimum age downward. Set a minimum age for an Appeals Court appointment and a younger minimum age for a District Court appointment: 55 and 48 respectively might work.
- Speaking of the other Federal Courts. These courts have too few judges. If all District Courts were staffed as well as Kentucky’s, there would be approximately one federal judge for 400,000 people in a District. If the Courts of Appeals were staffed as well as the best staffed among the Courts of Appeals, there would be a judge for every 1.5 million people in a Circuit.
Joe Biden has named thirty-six Commissioners and set their task in neutral terms. Commissioners are not called upon to advocate for particular reforms — for expanding the size of the Court, for instance.
Do you want to tell them what you think? Think twice about how to advise them. These are among the most distinguished jurists in the country. Some may not be particularly humble. None are unfamiliar with the issues they are considering.
If you feel compelled to tell them what you think, consider what the reforms you most want from them. I know what I want. I want them to include two ideas of mine that are not commonly discussed.
- Expanding the Court to 11
- Setting a minimum age for appointment to the Supreme Court.
Here are the Commission members.
Here are the Commission members. You can contact them at https://www.whitehouse.gov/pcscotus/. I’ve done that.
Co-Chair Bob Bauer. BA Harvard, JD Virginia
Bob Bauer is Professor of Practice and Distinguished Scholar in Residence at the New York University School of Law and Co-Director of NYU Law’s Legislative and Regulatory Process Clinic.
Co-Chair Christina Rodriguez BA, JD Yale ML, Oxford
Christina Rodriguez is a professor at NYU Law School and former Deputy Attorney General. She is a member of the Council on Foreign Relations
Commission Members:
Michelle Adams, BA Brown, JD City U, JJM Harvard.
Michelle Adams is a Professor of Law at Benjamin N. Cardozo School of Law, where she teaches Constitutional Law, Federal Courts, and Federal Civil Rights. At Cardozo, she is a Director of the Floersheimer Center for Constitutional Democracy and was a Board Member of the Innocence Project.
Kate Andrias. JD Yale.
Kate Andrias is a Professor of Law at the University of Michigan. She teaches and writes about constitutional law, labor, and employment law, and administrative law, with a focus on problems of economic and political equality.
Jack M. Balkin. BA, JD Harvard, PhD Cambridge
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression, and the Knight Law and Media Program at Yale.
William Baude. BA Chicago, JD Yale
William Baude is a Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School, where he teaches federal courts, constitutional law, conflicts of law, and elements of the law.
Elise Bodie BA Yale, JD and MPP Harvard.
Elise Boddie is a Professor of Law and Judge Robert L. Carter Scholar at Rutgers University. An award-winning scholar, Boddie teaches and writes about constitutional law and civil rights
Guy-Uriel E. Charles BA Spring Arbor, JD Michigan
Guy-Uriel E. Charles is the Edward and Ellen Schwarzman Professor of Law at Duke Law School. He writes about the relationship between law and political power and law’s role in addressing racial subordination.
Andrew Manuel Crespo BA, JD Harvard
Andrew Manuel Crespo is a Professor of Law at Harvard University where he teaches and writes about criminal law and procedure.
Walter Dellinger BA UNC. JD Harvard.
Walter Dellinger is the Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers
Justin Driver. BA Brown, MPhil Oxford, teacher cert. Duke, JD Harvard
Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law School. He teaches and writes in the area of constitutional law, education law, and prison law.
Richard H. Fallon, Jr. BA JD Yale, BA Oxford.
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.
Caroline Frederickson BA Yale, JD Columbia
Caroline Fredrickson is a Distinguished Visiting Professor from Practice at Georgetown Law and a Senior Fellow at the Brennan Center for Justice
Heather Gerken. BA Princeton, JD Michigan.
Heather Gerken is the Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. Her focus is constitutional law and election law — federalism, diversity, and dissent.
Nancy Gertner BA Barnard, MA, JD Yale
Nancy Gertner is a former US District Court Judge, faculty member at Harvard Law School and is currently a visiting lecturer at Yale Law School. She was a civil rights and criminal lawyer.
Jack Goldsmith. BA Washington & Lee, BA Oxford, JD Yale.
Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School, a Senior Fellow at the Hoover Institution and co-founder of Lawfare. He teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and federal courts.
Thomas B. Griffith BA Brigham Young, JD Virginia
Thomas B. Griffith served on the US Court of Appeals, the DC Circuit. He is now the Special Counsel at Hunton Andrews Kurth, a Senior Advisor to the National Institute for Civil Discourse, and a Lecturer on Law at Harvard Law School.
Tara Lee Grove BA Duke, JD Harvard
Tara Leigh Grove is the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law.
Burt I. Huang BA, JD, PhD Harvard,
Bert I. Huang is Michael I. Sovern Professor of Law at Columbia University. He created the Courts & Legal Process colloquium to bring judges, students, and faculty together to discuss new academic research about the judiciary…
Sherillyn Ifill. BA Vassar, JD NYU
Sherrilyn Ifill is the President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. and a member of the faculty of the Maryland Law School.
Olatunde Johnson BA Yale, JD Stanford
Olatunde Johnson is the Jerome B. Sherman Profgessor of Law at Columbia Law School, where she teaches legislation and civil procedure and writes about modern civil rights legislation, congressional power, and innovations to address discrimination and inequality in the United States.
Michael S. Kang BA, JD Chicago
Michael S. Kang is the William G. and Virginia K. Karnes Research Professor at Northwestern Pritzker School of Law. He studies campaign finance, voting rights, redistricting, judicial elections, and corporate governance.
Alison L. LaCrois BA, JD Yale, MA, PhD Harvard.
Alison L. LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago Law School. She is also an Associate Member of the University of Chicago Department of History.
Margaret Hayes Lemos. BA Brown, JD NYU
Margaret Lemos is the Rorbert G. Seaks Professor of Law at Duke Law School and a scholar of constitutional law, legal institutions, and procedure.
David F. Levi BA Harvard, JD Stanford
David F. Levi is the Levi Family Professor of Law and Judicial studies and Director of the Bolch Judicial Institute. His areas of expertise are election and political law.
Trevor W. Morrison, BA University of British Columbia, JD Columbia
Trevor Morrison is the Dean of NYU School of Law. His teaching and scholarly areas of interest are constitutional law and the federal courts, especially the separation of powers and the law of the executive branch
Caleb E. Nelson. BA Harvard, JD Yale,
Caleb Nelson is the Emerson Spies Distinguished Professor of Law at the University of Virginia. He teaches civil procedure, federal courts, and statutory interpretation and has also taught constitutional law.
Richard Pildes BA Princeton, JD Harvard
Richard Pildes is a professor at the NYU School of Law with a special interest in constitutional law and legal issues that concern democracy.
Michael Ramsey BA Dartmouth, JD
Michael D. Ramsey is Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law. He teaches and writes in the areas of constitutional law, foreign relations law, and international law.
Kermit Roosevelt III BA Harvard, JD Yale
Kermit Roosevelt III is a professor at the University of Pennsylvania Law School with a special interest in constitutional law, the conflict of laws, and federal jurisdiction.
Bertrall Ross BA Colorado, MSc London School of Economics, JD Yale.
Bertrall Ross is the Chancellor’s Professor of Law at the University of California, Berkeley School of Law. He teaches and writes in the areas of constitutional law, election law, administrative law, and statutory interpretation.
David A. Strauss BA, JD Harvard
David Strauss is the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic at the University of Chicago Law School.
Laurence H. Tribe BA JD Harvard
Laurence Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University.
Michael Waldman. BA Columbia, JD NYU
Michael Waldman is the president of the Brennan Center for Justice at NYU School of Law. The Center is focuses on voting rights, money in politics, criminal justice reform, and constitutional law.
Adam White BBA Iowa, JD Harvard
Adam White is a resident scholar at the American Enterprise Institute and an assistant professor of law at George Mason University’s Antonin Scalia Law School, where he directs the C. Boyden Gray Center for the Study of the Administrative State.
Keith Whittington BA Texas, PhD Yale.
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is currently the chair of Academic Freedom Alliance. He works on American constitutional history, politics and law, and on American political thought.
Final thoughts
It is not clear how the Commission will go about creating its report. A faculty committee of 36 people is likely to be unwieldy. Josh Blackman, for the conservative “reason” magazine describes the group as 2-1 liberal (an acceptable ratio to him, he says, considering how many law professors are liberal). He adds that few of them could complete a book by themselves within time limit given to the unwieldy group — 180 days from their first meeting that they are supposed to complete the report. Blackman claims that the task might be a little easier because the Commission is not tasked with making recommendations. I will add that Commissions and Courts, for that matter, sometimes exceed their charge.
The co-chairs are from a single institution, NYU Law School. It may be that they can work together efficiently and move the Commission toward clarity. This group of experts could lay out common understandings, the areas of difference, and reform alternatives with a clarity that helps the President both choose the reforms he advocates and advocate effectively for the reforms he chooses.