Biden’s Court Reform Committee listens to expert opinions on term limits and judicial review
July 1, 2021
On Wednesday, the debate on reform of the Supreme Court continued, and a White House committee heard testimony on a wide range of reform proposals, including increasing court seats, reducing its influence, increasing its transparency, and limiting the tenure of judges.The full-day hearing is the second meeting of the Presidential Committee of the U.S. Supreme Court, a 36-member bipartisan committee, Biden Appointed in response to a call from some Democrats to expand the size of the courtThe task of the committee is to study potential reforms and submit a report to the president this fall.
The meeting was divided into four expert groups. Group members have five minutes to make an opening statement, and each group has four to five members each have 10 minutes to ask questions. These panels cover four broad topics: the origins of the Supreme Court’s reform efforts, the role of the courts in the U.S. constitutional system, the court’s case selection procedures, and transparency issues.
At the beginning of the meeting, the committee members listened to a speech by Nikolas Bowie, an assistant professor at Harvard Law School. Bowie advocates against judicial review-the court has the power to repeal unconstitutional laws. He referred to the Supreme Court as an “anti-democratic institution,” and judicial review as an “anti-democratic super weapon,” and suggested that the United States would be better off if it aspires to be as democratic as New Zealand. Bowie urged the committee to evaluate all the proposals it considers, with a view to increasing political equality by depriving courts of power.
His colleague Noah Feldman, who is also a professor of law at Harvard, disagreed with this view and urged members not to assume that judicial review is inherently anti-democratic. He said that the Supreme Court is of course “anti-majority” because judges are not directly elected, but it is still a democratic institution because it is a tool that the people choose through democratic means to protect the democratic process. He said that democracy operates through a system of checks and balances, and judicial review is such a check and balance. He added that another check is an implicit threat that Congress has the power to clean up the courts. But Feldman said that court packaging should be a “broken glass measure” that can only be used after the court has been in an illegal crisis for a long time. He and other team members believe that there is no such crisis today.
In another group, Professor Rosalind Dixon of the University of New South Wales agreed with Feldman’s view that now is not the right time to expand the court or deny its jurisdiction. She also provided members with an international perspective. As she explained, the United States is a beacon of constitutional democracy in many parts of the world, and any reforms implemented by the United States can later be used as a reference for the legitimization of other countries’ authoritarian strategies. She emphasized that some of the most serious attacks on democracy in the past few decades have been achieved through enlarged courts. Other panel members also expressed their disapproval of court packaging and deprivation of jurisdiction, but instead favored term limitation as a potential reform of the court.
Ilan Wurman, associate professor of law at Arizona State University, explained that the justice’s term limit will also operate as a reform of the confirmation process, which has been seen as a system that has evolved into a partisan system in recent years. As Harvard political scientist Maya Sen said, the main goal of the committee should be to reduce the justices’ motivation to play tricks, and term limits will eliminate the ability to retain positions for partisan advantage. For example, staggered 18-year term limits will eliminate the tendency of judges to retire when their preferred party controls the White House. In addition, Sen said that the United States is the only major democracy in the world that does not have a Supreme Court term limit.
Another potential reform is for Congress to impose an absolute majority voting rule on the Supreme Court, or a similar form to require the court to find obvious constitutional errors before overturning the regulations. A commissioner-Professor Michael Ramsey of the University of San Diego Law School-said he was interested in this idea. However, many panelists objected, saying that this would cause more deadlocks, and other countries have also implemented similar reforms in anti-democratic ways.
Amy Howe, co-founder of SCOTUSblog, advocated for greater transparency in court practices, and also appeared as a panel member. Howe is currently reporting in SCOTUSblog’s courtroom as an independent contractor. He explained that the biggest step to improve transparency is to permanently provide the public with live audio or video of oral arguments. She said these disputes often affect many people across the country, and everyone should have the opportunity to see or hear them. For the first time in history, the court provided live audio of its arguments to the public during the COVID-19 pandemic, but the court has not yet indicated whether it will continue the practice next semester.
More discussions are yet to come.Information about the team members on Wednesday and the corresponding written testimony can be found HereAnd release public comments HereBefore the committee completes its report, there will be four public meetings, and the next meeting is scheduled for July 20. At that meeting, the committee will hold six other panel discussions on topics including confirmation procedures, court reforms, term limits and replacements, composition, and summary reflections on the Supreme Court and the constitutional government. The last three meetings are tentatively scheduled for October 1, October 15 and November 10. The committee will continue to accept public comments until November 15.