Two Statutory Proposals For SCOTUS Reform

I have not read the final report of the Presidential Commission on the Supreme Court. I submitted two comments that can be found on the website under my real name. I finally read the section on term limits.

The discussion was an interesting analysis of the pros and cons of term limits, providing details of local and foreign practice, and offering a summary of different options (both statutory and constitutional). 

For instance, forty-seven states have term limits and twenty-seven countries do. The usual term limit is twelve years or less. The range internationally is 5-15. Germany is cited as the most elite constitutional court in Europe. They have a twelve-year term and a sixty-eight-year-old retirement age.

The report does not make recommendations. It discusses background and talks about both sides. Some reasons raised opposing term limits are that it would hurt stability (even though historically judges were on for at most fifteen years), raise partisan divisions (as compared to now), be difficult to implement (other places have it), and further the idea judges are partisan (doubt this will do much to add to it).  

Biden's statement was open-ended. Sen. Sheldon Whitehouse supports a statutory version. Whitehouse's approach is one of the statutory options discussed by the report. The other two are temporary designations of lower court judges and a mandatory senior status after a set amount of years. 

The Whitehouse proposal argues that Art. III provides Congress with the power to regulate appellate jurisdiction in non-original cases. So, justices under his proposal would have a fixed term for all appellate matters. Overall, I'm inclined to be open-minded but don't think long-term historical understanding will allow enough people to accept it without an amendment. 

Anyway, his proposal would schedule a nomination for the first and third years of the presidency. Also, it would kick in at the beginning of the first full term of the presidency after passage. So, if the law was passed in 2025, it would go into effect in 2029.  The latest nine members would perform all appellate functions (most of the work). 

This suggests that my concern for term limits not to take effect for a long time might be misguided. The report offers various ways term limits might be put in place, including my preferred temporary court expansion (until all nine are fixed terms).  I still think there will be some strong opposition to applying it to the current membership. 

Meanwhile, the Biden proposals (which as usual I generally agree with Michael Dorf about) include an amendment to override the Trump immunity decision. Sen. Chuck Schumer and around thirty-five other senators propose to do so by statute.  

This caused the usual suspects to go apoplectic, especially since it has a jurisdiction-stripping provision and other attempts to play keep away from Supreme Court review. The reference to "Trump Derangement Syndrome" (why do victims of rape act so deranged about the people who attacked them?) suggests the partisan caliber of this person.

Nonetheless, the asshole has a point on the core concern. Congress should not try to use a statute to override a constitutional provision and even try to limit the ability of the lower courts to interpret it. The chance of this backfiring in some other cases is easy to imagine. But, they don't even have total Democratic support from what I can tell.  

The "No Kings Act" is a messaging bill. I think it is a misguided message since it comes off as a bit too much hardball attempting to nullify a Supreme Court ruling. A statutory protection of abortion rights is one thing. An attempt to simply nullify a Supreme Court's constitutional decision, horrible it surely is, is much more questionable. 

Shades of how the Religious Freedom Restoration Act attempted to override Oregon v. Smith. At least there, the law didn't try to keep the Supreme Court from interpreting it or have a strict time limit for when even lower courts could. The Supreme Court ultimately held that it was unconstitutional as applied to the states. 

I understand the message. But, I would still disagree with the approach. And, to the degree it can invite allegations of Democrats going crazy (hypocritical as the allegations might be), it's imprudent.  

Still, it probably won't cause the most harm. I question if it would even pass a straight up and down vote, noting that is not how things work in the Senate. Many people will accept it as a message about how horrible the ruling is. That is the subset who is paying much attention. Any belief it is unreasonable from people whose views matter also won't matter much.

There will be various responses to the need for Supreme Court reform. Some will be more reasonable than others. Some, like court expansion (which I support), have an uphill fight. I do not think this bill is worthy of passage.  

I like the fire. Try to use it differently.  

ETA: I saw Prof. Victoria Nourse reference Schumer's bill on Twitter. She didn't question its constitutionality. She simply noted that it might be the chance to break the filibuster. I think an abortion bill would be.

The other thought is just how horrible is this bill? What happens when SCOTUS overreaches so far that it is truly beyond the pale? Should we just grumble and cite nearly impossible "solutions" like impeachment?  

I think that there is a time and place for hardball and a form of civil disobedience. I still am wary about this measure overall. It is also academic. It won't pass and I don't even know if every Democrat in the Senate (putting aside Manchin) would want to vote for it.

What is the net effect of this law passing? I think there is still a chance for a lower court to find it unconstitutional. It likely won't be the thing that causes Trump to be prosecuted. 

The best shot there is the national security indictment eventually being taken from Judge Cannon. There is also probably enough left in the D.C. case though Trump v. U.S. will make that a bit of a mess. 

I am open to some "crossing the Rubicon" moment but this flawed (and not just because it is a direct challenge to SCOTUS) bill does not seem worth it.