A little-noticed action by the Biden administration, but one with potentially sweeping consequences, was the formation last April of a 36-member bipartisan commission to study the Supreme Court.
Disgruntled Democrats led the effort after President Obama’s 2016 failed nomination of Judge Merrick Garland when Senate Majority Leader Mitch McConnell declined to hold a Senate hearing (only the Senate confirms or rejects federal judicial nominations), and then after President Trump nominated Judge Amy Coney Barrett 35 days before the 2020 presidential election. It marked the shortest time in American history between a Supreme Court nomination and an election.
The commission consists of former federal judges, constitutional scholars, and practicing attorneys. Their task is not to evaluate the risks and benefits concerning the court’s future. Members include progressives like Laurence Tribe, professor emeritus at Harvard Law School, and conservative Jack Goldsmith, also at Harvard, who served in President George W. Bush’s Justice Department.
The commission will prepare a report for the president, which is to be made public on Nov. 14, 2021. Overall, reviewing an institution almost 235 years old is a positive step, even if nothing comes of the analysis.
The commissioners will assess the current number of justices, namely nine, now serving on the court. The Constitution does not set a particular figure. The very first court consisted of six justices. Congress in the 19th century changed the number several times for political reasons. For example, the number reached 10 in 1863 when President Abraham Lincoln sought to create an antislavery court. After Lincoln’s assassination, the Radical Republican Congress reduced the number to seven to prevent President Andrew Johnson, a Tennessean, from nominating anyone. Three years later in 1869, under President Ulysses S. Grant, Congress increased the number to nine, where it has stood ever since.
In the 20th century, President Franklin Delano Roosevelt was so incensed over the court invalidating so many New Deal laws, he threatened to increase the number of justices.Five justices typically determined that Congress overstepped its constitutional authority in passing major pieces of legislation such as the National Recovery Act. That led the press to refer to the core group of them as “the four horsemen,” an allusion to the end of time and the apocalypse. FDR’s so-called court-packing plan failed.
Another issue is term limits. The Constitution specifies that all federal judges serve “during good behavior.” Everyone at the time of ratification understood this meant for a life term unless they resign, retire, or are removed from the bench by impeachment. Some observers have suggested that many justices have been far too old to continue to serve, and that a term of something like 18 years seems about right.
Many believed that the longest serving justice, William O. Douglas (1939-1975), was ill and perhaps even senile in his last years on the court. But this has not always been the case. Take, for example, Justice John Paul Stevens (1975-2010), who was 90 years old when he retired. After he left the bench, he wrote three books, and continued to play tennis for many years. He died at 99.
Establishing a term limit by law rather than a constitutional amendment would likely lead to lawsuits. Ordinary law cannot trump the provisions of the Constitution, but adding an amendment to the document these days is generally impossible. It takes a two-thirds vote in both houses of Congress to pass, and then three-quarters of the states must agree to ratify it.
A third question is whether the court should have limits when overturning laws made by the states or Congress, or halting action by the executive branch. Commonly referred to as judicial review, this practice is not authorized in the Constitution. It was a historic action taken by English common-law courts, and Alexander Hamilton presumed the courts in the new American republic would continue to exercise it.
Chief Justice John Marshall, who served from 1801 to 1835, has long been credited as “writing” judicial review into the Constitution when in the famous Marbury v. Madison decision, he echoed Hamilton. He wrote, “It is emphatically the province and duty of the judicial department to say what the law is.” While he did not proclaim judicial supremacy over the president or Congress, the Supreme Court now has the final word on the law or executive action. Perhaps the court should muster a supermajority of, say, seven votes rather than a bare majority to overrule a law or presidential decision.
The commissioners will also study other matters, such as the increasingly politicized confirmation process and ways to make the justices more transparent, especially concerning their health problems. They may also investigate judicial ethics, because Supreme Court justices are not subject to the Code of Conduct for U.S. Judges. They make their own rules on an individual basis.
Even if Congress is unable or unwilling to act on anything the commission concludes, the process itself can only enhance the judicial process.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years, and is preparing a new edition of his “American Constitutional History.”