Justice Kagan Supports SCOTUS Reform

 Biden Supports Court Reform

And I’m going to call for Supreme Court reform because this is critical to our democracy — Supreme Court reform.

President Biden listed Supreme Court reform as one of the things he would address in his remaining months in office during his remarks about resigning from the presidential race. His presidential commission on SCOTUS provides key background material.   

Jack Goldsmith (of Lawfare and the Bush43 Administration) on Twitter called him a hypocrite (a separate tweet spoke of Biden "lecturing" countries to uphold judicial independence):

Biden tonight:  "Supreme Court reform . . . is critical to our democracy,”

Biden 2023: “The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary."

The Wall St. Journal (Alito's semi-official paper) discussed Biden's "Court-Smacking Plan." 

Biden has supported such things as ethics reform, term limits, and addressing the Trump immunity ruling. It is an exaggeration to suggest such reforms threaten the independence of the courts. 

Overall, I believe that when you "reform" something, and do it right, you improve things. The Protestant Reformation did not destroy Christianity. It in the end made it stronger. The Catholic Church reformed too.

Kagan Supports Reform 

“The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not,” Kagan told a meeting of federal judges and lawyers.

Justice Kagan welcomed explicit ethical guidelines and now supports enforcement. Speaking only for herself, while being interviewed in front of a crowd of judges and lawyers [she is the circuit justice for the Ninth Circuit], she calls this a "fair" criticism. 

As Fix the Court notes, a system of ethics with "teeth" needs an enforcement mechanism. Kagan noted that the justices themselves would not be a great party to do this. She suggests perhaps “some sort of committee of highly respected judges with a great deal of experience and a reputation for fairness." 

Lower court judges are involved in the regulation of lower court ethics. Sen. Sheldon Whitehouse has referenced the Judicial Conference, which Chief Justice Roberts heads. Kagan named checked Roberts in her remarks, noting he could set up the rules here. 

I provide various links to articles covering this. Blogs also addressed her remarks. It would be useful if there was a transcript on the website, especially since these remarks in front of the circuit are semi-official.

Kagan, implicitly at least dissenting from Alito's stance, granted in the past that Congress had some power to regulate Supreme Court justices. 

She left open the possibility that ethics reform would in some fashion be regulated by Congress. Justice Breyer meanwhile in the past supported term limits.  

Term limits and retirement ages are the rules worldwide without it being seen as a threat to judicial independence. The presidential commission report provides helpful details, for those who care to read it.

Roberts has not shown much willingness to uphold judicial ethics. The voluntary ethical guidelines were provided under sufferance, with a snide statement that it was largely a result of the public not realizing the justices already followed ethical guidelines. 

Roberts along with the other conservatives, unlike the liberals, does not even reference the guidelines to explain why they do not take part in cases. This week's summer order list (mundane) reaffirmed this tendency. 

Congress must play a role. Basic checks and balances are part of our constitutional system. Congress has the power to regulate the courts as much as the courts have the power of judicial review to check Congress.  It is not a threat to valid independence.  

Harris Supports Court Reform

Kamala Harris has in the past been a strong critic of the Supreme Court. She was open to putting court expansion on the table while running for president last time around. She argued Kavanaugh might deserve impeachment for lying during his confirmation.  

As the presumptive nominee, perhaps, Harris will be somewhat more hesitant this time. Nonetheless, there is no reason to expect she will pull back too much. Court reform is a key issue on the table for the 2024 elections. Justice Kagan is at least partially on board.

Concurring Opinions

Kagan also was concerned about the justices writing too many concurring opinions (she took part in some) that confused the holding of the Court. 

These opinions provide personal statements, sometimes providing different reasons (concurring in judgment) for going along with the result. The concurring justices help confuse the lower courts.  

Concurring opinions have their place. They provide a chance for justices to provide their own take on things. Sometimes, they provide particularly helpful, such as the Ninth Amendment and substantive due process (Harlan particularly) concurrences in Griswold v. Connecticut. 

Nonetheless, they can be abused. Sometimes, they are mostly gratuitous, one justice basically hearing themselves talk. The concurrences might be interesting. OTOH, they can be gratuitous.  

One bit of confusion is when the justices are divided in many ways and some portion of the opinion of the Court does not have a majority. Lower courts can be confused about just what the Court held.  

My preference has been for the Supreme Court, in an official section [not the unofficial headnotes], to provide a summary of (1) what a majority of the Court supports and (2) what each justice holds. Now, the main thing to do is to check out the headnotes and try to see what section each justice supports.  

Miscellaneous Order 

Michael H. McGinley, Esquire, of Washington, D. C., is invited to brief and argue these cases, as amicus curiae, in support of the judgment below. 

The Supreme Court two a pair of cases to handle a circuit split involving a sentencing law. 

The United States agreed with the petitioners regarding their legal argument. Nonetheless, they opposed the Supreme Court taking the case. 

Since neither party supports the judgment below, and the Supreme Court still wants to hear the case, the justices picked someone to defend the lower court. For whatever reason, this sometimes happens.  

The Glossip death penalty case, for instance, involves a curious case of the state and person on death row both opposing the execution. 

Nonetheless, the state still requires a court to dismiss the execution, and it has refused to do so. An amicus was appointed to defend the ruling below.  

Glossip is among the first set of cases the Supreme Court will hear next term (October).