New York County Lawyers Association Supreme Court Task Force Issues Second Report to Biden’s Commission on SCOTUS Calling for Even More Comprehensive Reforms

NYCLA Task Force on the United States Supreme Court:  A Call for Comprehensive Reform

The New York County Lawyers Association (NYCLA) Task Force on the United States Supreme Court has long advocated for meaningful reforms to restore public trust and ensure ethical conduct on our nation’s highest court. On November 9, 2021, the Task Force submitted a report to The Presidential Commission on the Supreme Court of the United States, outlining the NYCLA Task Force’s position on various suggestions on Supreme Court reforms, such as term limits for justices and Court expansion.

Recent developments, including President Biden’s call for reforms and mounting support from legal experts and organizations across the political spectrum, indicate a growing consensus around key proposals  that include term limits and a binding code of ethics for Supreme Court Justices. This statement outlines the Task Force’s reform proposals, compares them with those suggested by President Biden, discusses the broader consensus within the legal community, and highlights the unique contributions of the NYCLA Task Force.

Alignment Between NYCLA and President Biden’s Proposals

Both the NYCLA Task Force and President Biden advocate for substantial reforms to the Supreme Court to address concerns about the Court’s legitimacy and ethical standards. The primary areas of agreement include:

1. Term Limits for Justices:

   Both NYCLA and President Biden propose an 18-year term limit for Supreme Court Justices. President Biden suggests a system where each president would appoint two justices per four-year term, with justices serving 18-year active terms on the Supreme Court. After this period, justices would assume senior status but retain life tenure as Article III judges. NYCLA similarly supports this phased approach but emphasizes the need for a structured transition period that applies new rules only to future appointees to respect the tenure of current justices

   (FACT SHEET: President Biden Announces Bold Plan to Reform the Supreme Court, NYCLA Report on Term Limits and Court Expansion).

2. Binding Code of Ethics:

   There is strong alignment on the need for a binding, enforceable code of ethics for Supreme Court Justices. Both NYCLA and Biden’s proposals call for mandatory disclosure of gifts, income, and reimbursements, recusal in cases involving financial conflicts of interest, and prohibition of partisan political activity by justices. However, NYCLA goes further by outlining specific duties for senior justices after their active terms, such as hearing cases on Circuit Courts, deciding matters of original jurisdiction, and assisting with administrative functions. These additional roles ensure that justices continue contributing to the judiciary while promoting regular turnover on the Court (FACT SHEET: President Biden Announces Bold Plan to Reform the Supreme Court, NYCLA Report on Term Limits and Court Expansion).

3. Legislative Pathways and Enforcement Mechanisms:

   Both NYCLA and President Biden acknowledge the role of Congress in enacting these reforms, whether through constitutional amendments or statutory changes. While Biden’s proposals focus primarily on legislative measures to establish these reforms, NYCLA suggests a combination of legislative and constitutional approaches to enhance the durability and legitimacy of the proposed changes. NYCLA also advocates for an independent oversight mechanism to enforce ethical standards, such as a panel of lower court judges or a large council of randomly selected federal judges, reflecting a more comprehensive approach to maintaining judicial accountability (FACT SHEET: President Biden Announces Bold Plan to Reform the Supreme Court, NYCLA Report on Term Limits and Court Expansion).

Unique Proposals from NYCLA

While there is considerable overlap between NYCLA’s proposals and those of President Biden, NYCLA offers several distinct elements that enhance the broader reform efforts:

• Gradual Implementation: NYCLA emphasizes a phased introduction of reforms, applying new rules only to future appointees. This approach respects the current justices’ tenure and facilitates a smoother transition to the new system, maintaining the Court’s stability and continuity during the reform process (NYCLA Report on Term Limits and Court Expansion).

• Expanded Roles for Senior Justices: NYCLA outlines specific roles for justices after their 18-year active terms, ensuring that their experience and expertise continue to benefit the judiciary. These roles include hearing cases on Circuit Courts, deciding matters of original jurisdiction, and assisting with administrative functions—including handling the so-called ‘shadow docket,’ deciding motions and substituting in when justices are ill or have recused—which provide a meaningful way for senior justices to contribute while promoting judicial renewal (NYCLA Report on Term Limits and Court Expansion).

• Confirmation Process Reforms: NYCLA proposes reforms to Senate procedures to ensure timely consideration of Supreme Court nominees, including requirements for up-or-down floor votes within a specified timeframe. This proposal aims to prevent prolonged vacancies and reduce political gamesmanship, enhancing the efficiency and fairness of the appointment process (NYCLA Report on Term Limits and Court Expansion).

Broader Consensus Within the Legal Community

There is broad agreement among legal scholars, bar associations, and policymakers on the urgent need for Supreme Court reform. This consensus has solidified in response to recent alleged ethical lapses by some justices and controversial rulings that have eroded public confidence in the Court’s impartiality and integrity.

• New York City Bar Association (NYCBA): The NYCBA has voiced strong support for a binding Code of Ethics for Supreme Court Justices. In their statement, they emphasized the “plummeting level of public trust in the United States Supreme Court” and called for “clear rules of ethical behavior, arising from a binding ethics code closely paralleling the one governing all other federal judges.” They underscored that such reforms are “essential” to restore faith in the Court’s impartiality and independence, closely aligning with NYCLA’s proposals (NYCBA Statement on Restoring Public Faith in the Supreme Court).

• American Bar Association (ABA): The ABA has also supported Supreme Court ethics reform, with ABA President Deborah Enix-Ross stating that “a binding code of conduct for the justices ‘is common sense.'” This aligns with NYCLA’s longstanding position that the justices should be held to the same ethical standards as other federal judges. The ABA has advocated for greater transparency, mandatory recusal rules, and stricter financial disclosure requirements, reflecting a shared commitment across the legal community to enhance judicial accountability (ABA Pushes for Supreme Court Ethics Reforms, How Term Limits for Supreme Court Justices—Now Backed by Biden—Could Work).

• Legal Scholars and Experts: Legal scholars across the ideological spectrum have also coalesced around the idea of Supreme Court term limits. For instance, conservative legal experts like Federalist Society co-founder Steven Calabresi have endorsed 18-year term limits for justices, though through a constitutional amendment rather than legislation. The bipartisan Presidential Commission on the Supreme Court, composed of leading constitutional experts, found “considerable bipartisan support” for term limits in its 2021 report (Combining Ethics and Term Limits Strengthens Efforts To Rein in a Supreme Court Run Amok).

• Harvard Law Review: An article in the Harvard Law Review proposed that a randomly selected council of federal judges handle ethics complaints against Supreme Court Justices. This proposal aims to ensure impartiality and independence in handling ethical violations and addresses concerns about the current self-policing model, where justices decide on their own ethical issues (Enforceable Ethics for the Supreme Court).

• Center for American Progress (CAP): CAP’s report emphasizes the need for combining term limits with a binding code of ethics to address the Supreme Court’s perceived overreach and ethical lapses. CAP argues for Congress to enact these reforms without requiring a constitutional amendment, leveraging its historical authority to regulate the judiciary. Additional reforms suggested by CAP include increased transparency in the Court’s certiorari process and prohibiting justices from owning individual stocks or accepting lavish gifts (Combining Ethics and Term Limits Strengthens Efforts To Rein in a Supreme Court Run Amok).

Conclusion

The growing consensus around Supreme Court reform reflects a shared recognition that action is needed to restore public faith in this vital institution. The alignment between NYCLA’s longstanding proposals and those now endorsed by diverse voices in the legal community underscores the urgency and feasibility of implementing meaningful changes. The Task Force’s proposals provide a comprehensive framework for reform that balances judicial independence with accountability, ensuring the Supreme Court remains a fair and trusted institution in American democracy.

As an organization committed to promoting the fair administration of justice, NYCLA stands ready to work with policymakers, legal scholars, and colleagues in the bar to advance these critical reforms. The time has come to move from discussion to action to safeguard the legitimacy and independence of the Supreme Court for generations to come.

For further reading, please refer to the following resources:

• NYCBA Statement on Restoring Public Faith in the Supreme Court

• Enforceable Ethics for the Supreme Court

• Combining Ethics and Term Limits Strengthens Efforts To Rein in a Supreme Court Run Amok

• ABA Pushes for Supreme Court Ethics Reforms

• How Term Limits for Supreme Court Justices—Now Backed by Biden—Could Work.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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