In April, President Joseph Biden established a Presidential Commission on the Supreme Court of the United States. The commission included three NYU Law faculty members: Professor of Practice and Distinguished Scholar in Residence Bob Bauer, who served as co-chair; Dean and Eric M. and Laurie B. Roth Professor of Law Trevor Morrison; and Sudler Family Professor of Constitutional Law Richard Pildes.
The executive order creating the commission charged it with analyzing “the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” Among the proposals the commission considered were increasing the size of the court, term limits for justices, and limits on the Court’s power to declare legislative acts unconstitutional.
The commission voted to deliver its report to the president on December 7. We asked Bauer, Morrison, and Pildes about their experience as commission members and their views on issues it tackled.
The Washington Post recently reported that “President Biden has shown little indication that his resistance to overhauling the Supreme Court has softened.” Why do you believe he created the commission?
Bob Bauer: The president responded to an active, important national debate by committing to a comprehensive study by a bipartisan body of experts. Particularly in these times, when so much public discourse is deeply polarized, this approach is especially needed in any consideration of major institutional reform proposals in our democracy. Nothing quite like this has ever been done: the report makes a singular contribution.
Trevor Morrison: From what he has said publicly, it is clear the president thinks the issue of Supreme Court reform is important and worth careful attention, and that his administration would benefit from an analysis of the various reform proposals by a diverse group of legal experts. I think the commission’s report does, in fact, make an extremely important contribution to the public discussions of those proposals, including the leading arguments for and against them and a consideration of their potential effects. Of course, whether to pursue any particular reform proposal requires political judgments best left to the Biden Administration and Congress.
What’s the most valuable thing the commission accomplished?
Bauer: I believe that, as reflected in the unanimous vote to submit the report to the president, the commission met its assigned charge, and did so admirably. It made a major contribution to the debate with a searching analysis of the legal and other issues presented by the most prominent reform proposals. It does not recommend any specific reform, as this was outside that charge, but I confident that it will have a salutary impact on the debate—it illuminates challenges and pathways, and it does so clearly and with analytical rigor. I cannot say enough about the high quality of the commission’s work.
Richard Pildes: The commission report provides the most comprehensive, detailed analysis of many of the most significant potential reforms to the Court that have been discussed in recent years. These issues range from more narrowly focused ones, such as how the Court handles matters on its emergency docket, to some of the most significant institutional changes ever proposed for the Court, such as moving from life tenure for the Justices to a system of 18-year, non-renewable terms—in which each president during a presidential term would have the opportunity to nominate two justices.
In many cases, the report delves much more deeply than any previous analysis into the details of how particular reforms would be implemented. The report also brings to the surface concerns about certain potential reforms that had not previously been developed anywhere else. I believe the report will be the standard starting point for most future discussions about potential reforms of the Court, particularly reforms that Congress might consider adopting or that might be pursued through constitutional amendment. It’s impossible to know when the political moment might open up for serious consideration of any particular reform, but when it does, the report will be one of the first places to which any political discussion will turn.
The report notes the commission does not come to a conclusion about whether, in recent years, the Court “has suffered a loss or crisis of legitimacy.” What’s your personal view on that question?
Bauer: As a commission co-chair, I would prefer to allow the report to speak for itself on this and other issues in the debate. There are strongly held views about how to define and assess legitimacy, especially in evaluating potential reforms and their consequences, and the report includes a very good discussion of that topic.
In testimony submitted to the commission, Nan Aron, president of the progressive advocacy organization Alliance For Justice, accused Republicans of engaging in a partisan takeover of the Court and cast it as part of a larger assault on our democracy and justice system that has taken place in recent years. In his testimony, Stanford Law School Professor Michael McConnell called for taking a longer view, pointing to increasingly bitter and partisan confirmation battles over the last 35 years, and cautioning the commission to “avoid the easy conclusion that it is the misbehavior of the other side, whichever that may be, that is the source of the problem.” Where do you come down on this?
Bauer: The portion of the report that addresses the genesis of the contemporary debate takes up this question, and the report also includes an appendix that contains excerpts of valuable testimony about the state of the confirmation process, which was otherwise outside our charge. A reader interested in this aspect of the reform debate will find much that is useful and thought-provoking in the report. It should be beyond dispute to add this: there are major differences over who is to blame for the sorry state of the confirmation process, but few who will argue that it is in good shape.
Pildes: Some of the reforms the report addresses, such as expanding the size of the Court, are clearly motivated by events in just the past several years; the desirability of those reforms inevitably depends, in significant part, on political judgments such as the ones Nan Aron and Michael McConnell debate. Other reform proposals, though, such as term limits, long predate these more recent controversies and have attracted bipartisan and cross-ideological support.
Given the bipartisan membership of the commission, to what extent did conversation and deliberation reflect the highly polarized state of US political debate?
Bauer: What I observed on the commission was a genuine commitment to grappling with hard, controversial issues fairly, thoughtfully, and with respect for differing views. And, to the credit of all the commissioners, the report fulfills that commitment.
Pildes: I won’t comment on any of the internal deliberations that took place, but from the public hearings, it was obvious that there were a range of strongly held views, as there should be, given the significance of the issues the commission addressed. But the way in which the commissioners worked through these issues, in order to provide the president with an honest, fair, in-depth analysis of different reform proposals and the issues to take into account in assessing them, was heartening. Few commissioners likely agree with every statement in the report, but the commissioners understood the importance of working collaboratively to produce a report that the commissioners could unanimously endorse as complying with the charge the president gave to the commission.
Morrison: I think it’s worth highlighting that, during our final public hearing, a number of commissioners with widely diverging views on the merits of the underlying issues praised the collaborative and respectful process by which the commissioners engaged with the issues and with one another. I came away from the experience optimistic about the capacity of serious people of good faith to work across deep disagreements to make progress on difficult, important issues.
How did your own views evolve during your service on the commission? What did you learn?
Bauer: I learned a great deal—and I am very grateful to have had the chance to work with commissioners who bring so much erudition, perspective and good judgment to these very difficult questions. I cannot think of a topic or issue we discussed, including a few I had been engaged with for years, that I did not find illuminated by these deliberations.
Pildes: I probably learned the most with respect to proposals for a constitutional amendment to shift from life tenure to 18-year, non-renewable terms for the Justices. I had been aware of proposals to do that, which began to be made about 15 years ago. But I was not aware of how widespread the support for that reform was. The commission received testimony in support of that change from across the political and ideological spectrum; from those who consider themselves originalists and those who do not; from comparativists who provided perspective on how the constitutional courts of other countries structure their courts. Because the commission did not operate at the level of broad generality alone, but also worked through the concrete practical issues concerning what it might mean to implement various proposals, such as term limits, I also learned a good deal about the complexity of some of these implementation questions. Because the term-limits proposal had not previously been the subject of such intensive deliberation and analysis, I also learned a good deal about the concerns some have about what adopting term limits would mean for the Court.
Morrison: Like Rick, I think I learned the most about the proposals in favor of term limits for the Justices. Some such proposals have been around for a number of years, but through the testimony we received I learned that support for these ideas is broader than I had realized. There are some interesting ideas on how to implement this change through ordinary legislation, although I think I have become convinced that a constitutional amendment is the better route. One reason for this is that, in order for a system of staggered, limited terms to work, the Senate would need to act on each new nomination in a timely fashion. A constitutional amendment is probably necessary in order to create such a requirement.
How do you respond to those who hoped the final report, in its assessment of the merits of various reform proposals, would be more clearly supportive of reform?
Bauer: If these critics read the report carefully, they will see that it advances the reform debate: it will now be, I believe, a better-informed, richer discussion, and those who support reform, or those who oppose it, will find the commission report to be indispensable. And it is not an “either-or” proposition. There are reforms that some may oppose while supporting others.
Speaking individually, and not as a member of the commission, is there any Court reform you support, and why?
Bauer: I have favored term limits in concept for many years and, before the establishment of the commission, had written to express that view. The report comprehensively lays out the case for, and against, term limits, and makes a major contribution to the question of how such a reform would be implemented. I was struck, if not surprised, by the broad, bipartisan support for term limits in the public testimony to the commission. I still hold the view that this is a serious and responsible reform, and that the implementation issues, while complex, can be managed.
Posted December 16, 2021