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No “Recs”? No Problem: SCOTUS Commission Highlights Benefits of Term Limits and Other "Fixes," Risks of Court Expansion

As the Commission works to finalize its report, the preliminary findings reiterate the popularity, feasibility of many SCOTUS fixes

The draft materials released today by the Biden Supreme Court Commission all but confirm what Fix the Court has been saying for years: SCOTUS needs fixing; staggered, 18-year term limits are a superior reform to court expansion for democratizing and modernizing the Court; and livestreamed arguments, an ethics code and stock divestitures would improve the public’s faith in the institution.

“There may not be discrete recommendations in the materials, per se, but the draft highlights the benefits of several popular Supreme Court reforms, including term limits, that would rebuild trust in an institution whose public esteem has recently cratered,” FTC’s Gabe Roth said. “I expect the justices are paying attention to this discussion, and so are their friends in Congress, who stand ready to advance proposals on tenure, livestreaming, ethics and stock divestitures if the justices demur.”

Here’s a summary of the “fixes” discussed, beginning with term limits:

Recently, thanks to FTC’s work, bills have been introduced in Congress to institute 18-year prospective term limits through simple legislation, where future justices would serve 18 years, after which they’d take senior status. This plan was the crux of the draft’s term limits discussion.

“Among the proposals for reforming the Supreme Court, term limits for Supreme Court justices appear to enjoy the most widespread bipartisan support,” the draft states (p. 2), adding later, “[T]erm limits can enhance the Court’s legitimacy in the eyes of the public. By regularizing Supreme Court appointments, they make the system of Supreme Court appointments appear fairer, less arbitrary, and more predictable.” (p. 5)

Though the Commission noted the ongoing disagreement about the constitutionality of a SCOTUS term limits statute, and the discussion on a never-going-to-happen term limits amendment was long-winded, those who support a statute idea “believe [constitutionality] concerns are overblown. They do not believe that a term limits statute would be any more destabilizing than a host of other issues that the Court has confronted over the years. They also think that inaction carries its own risks, and that the appointments process now displays a degree of dysfunction that makes remedial action urgent” (p. 24).

At the same time, the draft adds, “[T]he risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy” (p. 15). In other words, if, as many believe, the Court is a problem for democracy, “more Court” is not the solution.

Code of conduct:

Just yesterday, Justice Breyer said the justices “look to” the lower courts’ code of conduct when considering questions of ethics and recusals, implying that that should be good enough. It’s not. As the draft states, “A code [of conduct] drafted by the Justices, amplified over time by its application, might help the justices navigate” any questions surrounding the propriety of their “public and private activities” (p. 24). That’s quite close to an endorsement.

Live audio:

The Commission’s discussion on live audio for Supreme Court oral arguments and opinion announcements is timely. Though the Court has continued to livestream the audio during what’s hoped to be the pandemic’s last legs, it has not indicated its argument plans post-COVID. The report was sanguine on its success — and on its continuation in perpetuity:

“Given the Court’s longstanding opposition to cameras, a continuation of near simultaneous audio would be a step forward and would better enable the media to cover the Court’s work, while enabling interested members of the Bar and the public to better follow the work of the Court. Perhaps further experience with simultaneous audio will encourage the Court to try cameras as well” (p. 29).

Stock ownership:

Three justices maintain individual company’s stocks in their portfolios, and that’s in spite of the September Wall Street Journal investigation showing that, since 2010, an astounding 131 lower court judges sat on cases despite a financial stake in one of the parties, which is illegal. Though FTC has called on Justices Roberts, Breyer and Alito to sell their shares and invest solely in non-conflict-inducing funds for seven years now, and though they’ve halved their holdings in that time, recusals this month indicate they’ve sat idly by. This report says that the “Commission notes the consensus among observers that no Justices or their spouses and dependent children should own or continue to own individual publicly traded securities.” Amen.

Public appearances:

The Commission did a nice job trolling here (p. 30), saying it’d “add citation to Justice Alito’s Notre Dame address when transcript is available.” The video of the speech, of course, disappeared from the Internet moments after Alito finished speaking, and no transcript is available.

Financial disclosures:

Yesterday the Supreme Court indicated it may post the justices’ annual financial disclosure reports online (see this archived link) — something we’ve asked for since 2014 — which would be a huge improvement. In 2019 Justice Alito was asked about online disclosures and said “as a practical matter they are available online [thanks to] private groups.” That’s fine, but SCOTUS self-posting would be better. Disclosures were not mentioned in today’s draft materials, unless speedreading by the FTC team missed it.

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