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Days from the Start of OT17, Constitutional Law Profs Join FTC in Calling for SCOTUS Reforms

While it may seem at times that Fix the Court is a lone voice blowing in the wind, dozens of constitutional law professors from universities across the country are proposing several of their own easy-to-implement Supreme Court reforms ahead of the new term, from simplifying opinions to eliminating the cert. pool to streamlining solutions to circuit splits.

When asked by FTC executive director Gabe Roth to identify “one thing about the Supreme Court’s institutional shortcomings [he or she] would like to see changed,” 50 professors – including several former Supreme Court clerks and federal court shortlisters, in total hailing from more than two dozen law schools – responded.

The most popular reply was related to judicial tenure, with 12 professors saying that either term limits or a mandatory retirement age for the justices was their preferred fix. “I think having justices […] decide for themselves when they are replaced and by whom has proven to be very bad,” said a dean of a Midwestern law school who clerked for Justice Blackmun. “[I vote] moving to an 18-year term, with rotation after to a court of appeals,” said a northern California law professor who also clerked for Justice Blackmun.

Another common suggestion was related to the justices’ docket. Four professors lamented the lack of merits cases the justices hear each term, with another northern California-based respondent writing, “I think the court should do more work. When I was a law clerk [in the 1980s for Justice Brennan], the court decided more than 150 cases. Today it’s less than half that, with more law clerks and more technological ease.” Relatedly, two professors said that if the justices insist on hearing only 70 cases per term, then they should hire fewer clerks.

Five respondents called for an end to the cert. pool, the practice by which seven of the nine justices delegate the initial assessment of a petition to a single law clerk. A Justice Marshall clerk who now teaches in southern California told FTC, “I think that allowing cert. decisions to be shaped by the perceptions of just one clerk is risky and fraught.”

Broadcast access was tops for five respondents, with one Midwestern law professor who clerked for Justice Breyer asserting, “The absence of televised arguments is nothing less than scandalous in the year 2017.”

The opinions themselves – and how (and if) they are released – leave much to be desired, said another five professors. “I would have the court release all the opinions from [a release day] at once,” one D.C. law professor and Justice Kennedy clerk said. “There should be an easy way to know at a glance which justices signed on to any given part of an opinion, without flipping back to the convoluted sentence at the beginning. One possible fix would be some sort of running header in the U.S. Reports with the names or initials of the justices that sign on to that part or page,” added another D.C. prof, also a Kennedy clerk.

The justices should “release opinions after the fact explaining reasoning in ‘shadow docket’ cases,” said one southern California professor, whose area of expertise is often disposed of by the court in unsigned or unexplained orders. Another southern California prof and Kennedy clerk agreed: “I would like the court to publicly release […] opinions in cases or dispositions made without argument.” One analogous point everyone is likely to agree on, made by a D.C. professor: “I think more comprehensible opinions would be helpful.”

Finally, ethics and oversight were raised by three respondents. “There should be an inspector general for the federal courts,” wrote one southern California-based professor who has testified before Congress on the topic. “I throw my vote in for the existence of and adherence to a code of conduct,” added another southern Californian. “The court [should] adopt ethical rules for the justices,” wrote a New York-based prof, “[and] I would like to see a justice who recuses explain why, even if only in a sentence or two.”

“Fix the Court’s survey is a way of demonstrating to the justices, who we know pay attention to what their friends in academia think, that several minor reforms would improve how the court operates and how it is viewed by the larger public,” FTC’s Roth said. “Yes, the Supreme Court is functioning better than the other branches, but that’s a low bar, and this survey shows there’s room for an upgrade.”

Of the numerous reforms proposed by single law professors, one that caught FTC’s attention was from a New York-based Justice Powell clerk. “The court,” he wrote, “should develop a new writ to alert lower courts that they should consider a ruling in light of disagreements in other circuits.” Whether such a writ would reduce splits is unclear, but as with anything, identifying a problem is often the first step to finding a solution.

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