Supreme Court Commission Members Speak Out Against Draft Discussion Materials

10.15.21

Supreme Court Commission Members Speak Out Against Draft Discussion Materials

On Friday, several members of the Presidential Commission on the Supreme Court criticized the draft discussion materials released the night before for not fairly presenting arguments in favor of expanding the Court.

Commission members said the draft materials on Court expansion do “a disservice to the commission … and to this issue,” that the chapter “distorts not just the chapter but the entire report,” that the materials “shade against Court expansion without sufficient basis for doing so,” that it offered “a false equivalency … [a] distorted view of how we got here,” and that “a report that pours cold water on the one clearly legitimate exercise of congressional power to respond to a major jurisprudential trend … would be a report I would have trouble signing.”

Abbreviated transcripts of remarks are below. Videos can be viewed here.   

Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund: 

I actually don’t think that the text of the chapter ultimately reads as a balanced presentation of the issue. … This entire discussion is framed in the context of partisan politics. The architecture of the section, and the way in which it is framed, leads to a conclusion that I think is not warranted by the arguments presented in the text. And I actually think that that is a disservice to the exploration of this issue, and to the argument.

To read a chapter in which all of the calculations are about one political party or another to give the Democrats this to give the Republicans this, as though there are no arguments that go to court balance, that go to the fact that lifetime tenure means that justices are locked in for decades… There are reasons that relate to diversity of background and of profession, of race and gender, of geography, of law school. There are many reasons why one might support the idea of expanding the court that don’t have to do with your being, you know, beholden to a particular partisan agenda or another. And to the extent that this report frames the entire discussion that way, I think it does a disservice and actually silences what are the arguments that I think might be raised by people who are operating in that space of thinking about democracy, respect for the rule of law.

I think this does a disservice to the commission and does a disservice to this issue. And once you put it in that category, that this is purely an issue about whether the Democrats should get a greater advantage, or whether the Republicans to get a greater advantage, you basically allow people to check out from the arguments that actually relate to the legitimacy of the Supreme Court, not its own legitimacy and its eyes, but its legitimacy in the eyes of the public.

Professor Laurence Tribe:

[This discussion] is intellectually lovely. It is indeed an intellectual feast. But just as the nation was distressed when Judge Bork described that as his reasons for wanting to be on the Supreme Court, I’m somewhat distressed by the meta level of this discussion. … The time has come to talk about the merits.

Many people, and I include myself in this, believe we are indeed in a break the glass moment. A moment when we cannot simply treat disagreement about particular trends of decision as matters of more or less, but a moment … where we may be on an irreversible path, a kind of one-way ratchet in which a series of decisions suppressing voting rights, saying the courts are powerless to deal with gerrymandering, eliminating the preclearance provision of the Voting Rights Act, then gutting what is left of the Voting Rights Act… the combined effect is to endanger the survival of self-government. 

For those who believe the course is profoundly misguided, to say the only clearly constitutional path is blocked is essentially to say stop worrying about the court. For this report to send that message, when one believes the opposite, would be a profound mistake.

[These working papers] create the impression that although as a theoretical matter enlarging the court is a possibility, the arguments for it are swamped by the arguments against … I think a report that pours cold water on the one clearly legitimate exercise of congressional power to respond to a major jurisprudential trend … would be a report I would have trouble signing.

Professor Andrew Crespo:

Chapter 2’s rejection of court expansion … shapes, and, in my view, distorts, not just the chapter, but the entire report. The overarching message sent to those who see deep problems with the current court and with how it’s most recent seats have been filled, seems to be “don’t do the one thing you can do to address the problem, court expansion, but consider trying some things that probably won’t work, like amending the Constitution or passing statutes of questionable efficacy or constitutionality.” I think it’s impossible to divorce such a message from an underlying judgment about whether there is in fact a serious problem at hand. 

Dismissing the most salient and most viable intervention on the table cannot help but send a message that the underlying problem the intervention is trying to address is neither urgent nor serious, if it even exists. Suffice to say there are a great many people who disagree with that conclusion, including multiple elected leaders at the federal level, multiple leading scholars, numerous witnesses to our commission, and millions of our fellow citizens. 

To proponents of court expansion, increasing the number of seats on the court is not a violation of existing norms. It’s an attempt to reinforce and thus reestablish those norms. The current draft rejects this framing, and thus rejects a core premise of the court expansion argument when it says that there is a “decades long and unbroken norm against ‘court-packing’.” To proponents of expansion, this is just not true. … There is an intelligible, coherent, and to many people, persuasive, argument that the Supreme Court has been packed, twice, in the past five years. Expansion proponents take the reasonable, and in my mind, correct, view that norms are only norms if their violation means something. If the violations are acknowledged and corrected through action that aims to prevent the norm from being violated again. To be effective, such action needs to neutralize the benefit that those who broke the norm seek to reap, in this instance, decades long supermajority control of a powerful branch of government. Any number of actions might hypothetically be taken to enforce a broken norm, but as the report in its current draft makes clear, court expansion, for all its potential downsides, for all its potential dangers, is the one response most clearly within Congress’ power. 

I think this [approach] is a mistake. It is not what we were asked to do, it is not what I expected us to do, and I don’t think that a final report submitted in this form would be presenting a fair account of the debate on this important issue.

Former U.S. District Judge Nancy Gertner: 

We received the full report only seven days ago. As the discussion has reflected, there are real differences of opinion with respect to the nature of the problem with the Supreme Court and the nature of the remedy. I join in this with commissioners Iffill and Charles and Crespo — I don’t think the current draft adequately reflects that debate.

There are certainly people who think there is no issue, the changes in the composition in the court should not prompt major reform, and in any event there will be new administrations in the future that will perhaps tilt the court in a different direction. Others believe that there are problems with the Supreme Court, but they’re limited and cured by minor fixes. Still others, and I’m among them, believe that there are substantial problems and that are particularly unique at this moment in time, in part for the reasons that Commissioner Crespo has described. That we are at a tipping point where reform is crucial, and that curing these problems, as I said, requires major fixes. I don’t believe the draft adequately reflects the latter position. Rather than taking a neutral stance, the draft tilts rather dramatically in one direction. … The arguments in favor of expansion are set up as strawmen.

There is a false equivalency in both the introduction and in Chapter 2. A distorted view of how we got here. … The draft [also] doesn’t talk about how unique this moment is for our democracy, when one party is apparently seeking to embed its power for years and years to come through voting changes. And where the current Supreme Court, whether intentionally or unintentionally, whether in good faith or not, is enabling that.

This is not about court overturning legislative enactments, it is not only about legitimacy, it really is that the net effect, whatever the motive, whatever the basis, the net effect of rulings of this Court, ratifying efforts to restrict the voting of racial minorities, to regulate money in politics, restrict partisan gerrymandering – the net effect of those rulings is to enable one party, a party supported by a  minority of citizens, to secure a tactical advantage, for a long time, regardless of demographic trends. Whatever balance is usually created by future appointments will be lost, for years and years to come. Put simply, the usual self-correcting mechanisms of the Court will not work now, when confirmation norms are ignored and when the net effect is to ensure one party’s continuation in power

When you read Chapter 2 in connection with the other chapters, you’re left with a sense, you know there’s not really anything we can do. Or even there’s anything we should do. I don’t think that that’s the case.

Professor Guy-Uriel Charles:

What I found disturbing is where they shade against Court expansion without sufficient basis for doing so. … For example, with respect to the descriptive diversity claim of Court expansion, that expanding the Court might lead to descriptive representation on diversity grounds, the draft simply states that there’s no reason to believe that Court expansion would produce benefits because there’s no guarantee that a larger Court would be drawn from diverse groups. But there’s no basis, it seems to me, for that conclusion. I don’t know how it arrives at that conclusion, and it seems to move the ball. It raises the standard by saying that proponents of court expansion would have to guarantee that diversity would result as a consequence of expansion. And that, to me, doesn’t seem to be warranted. The conclusion is drawn by simply changing the burden of proof and placing it on the reformers. I think it is important on the policy considerations for there to be even-handedness. 

I think achieving what we’d like to achieve will be made easier and much more effective if we reframe and take out the partisanship of the framework and then think much more broadly and carefully, and getting more even-handedness in the policy considerations.