SUPREME COURT TASK FORCE

New York County Lawyers Association

 

MEMORANDUM

 

TO: The Presidential Commission on the Supreme Court of the United States

FROM: Supreme Court Task Force of the New York County Lawyers Association

RE: Suggestions on the Issue of Term Limits and Court Expansion

DATE: November 9, 2021

 

Our organization, representing 7,000 attorneys who practice in New York (see “Appendix,” below at page 7), appreciates the opportunity to comment on the important issues the President has directed this Commission to consider.

 

The Commission should seriously consider an approach based upon the recent testimony and submissions of Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale University, and Michael W. McConnell, Richard and Frances Mallery Professor, Stanford Law School. The concept (which requires phasing in, as explained below) entails that for the first eighteen years of their tenure Justices of the Supreme Court would sit on panels of nine that would adjudicate most matters – with two new Justices appointed (subject to confirmation) during each presidential term. After serving eighteen years, Justices would continue to enjoy Article III’s protections (including life tenure), but would generally perform other functions than sitting on the Court’s panels of nine, such as: (1) hearing cases on the Circuit Courts of Appeal;(2) deciding cases within the Court’s original jurisdiction, such as disputes between states; deciding motions; (4) making recommendations on certiorari petitions; (5) filling panels of nine when vacancies exist for any reason such as illness or recusal; and (6) handling administrative functions.

 

These are not unimportant or diminished functions; they are important and practical functions that currently may detract from the Justices’ time to hear and decide argued cases. “Riding circuit” from time to time would give Justices important on-the-ground experience in the intermediate appellate courts and could also alleviate the ever-increasing workload in the Circuit Courts. As many have also suggested, such Justices could fill out panels of nine where issues such as recusals or illness create panel vacancies; this possibility might be coupled with adoption of a code of ethics and criteria for recusal, either by Court rule or by legislation. After all, Justices’ failure to recuse themselves from cases, because of the rule of necessity, has become an increasingly contentious issue, leading some commentators to see at least potential conflicts of interest.

 

These Justices could also hear important and time-consuming cases falling within the Court’s original jurisdiction, which special masters now commonly hear. They could handle matters on the Court’s “shadow” or emergency docket and procedural motions, particularly from Circuits where they might sit. These Justices might make recommendations respecting, or even vote on, the thousands of certiorari petitions filed annually. Justices with eighteen years of Court experience and a lightened docket could also assume important rule-making and supervisory responsibilities and explain the role of the judiciary and the Supreme Court to the public and otherwise foster civic education and engagement. With the Justices who have less than eighteen years of tenure sitting on panels freed from, or receiving assistance in, these other duties, the Court may be able to accept more cases for oral argument. Notably, the Court is currently criticized because it accepts so few cases for review every year out of thousands of petitions for certiorari, and only a select few members of a small, elite “Supreme Court bar” file many of the successful petitions. It would benefit the Court, and the whole judicial system, if more litigants had access to Supreme Court review.

 

Under this proposal, the Court would gradually achieve more balance over time, as new viewpoints would be infused every few years. By the same token, some criticize the Court for insularity in the issues the Justices choose to consider (and not to consider); and the small coterie of advocates (often former law clerks), from whom they accept a high percentage of cases and whom they feel comfortable having appear before them. This no doubt reflects the skill and expertise of these advocates, but it also may derive from the length of time during which the same Justices remain on the Court and assume critical importance. New Justices with new predilections and viewpoints would add a new focus and reduce this perceived insularity.

 

This proposal could be enacted through a constitutional amendment. It is possible, however, that a statute adopting this proposal might pass constitutional muster, rendering a constitutional amendment unnecessary.

 

Specifically, under Article I § 8 of the Constitution, Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Article III § 1, in turn, provides: “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” These provisions have long been construed to give Congress the power to enact legislation affecting the size, jurisdiction, and procedures of the Court. Congress has exercised that authority before: it changed the number of Justices six times before setting the Court’s current size in 1869, and more recently it gave the Court its discretionary certiorari control over its docket. It is at least arguable that this proposal represents no greater a legislative intervention. Because Congress has the inherent authority to create additional judicial positions – and because the proposal maintains the life tenure and Article III protections and responsibilities of all Justices (simply altering their duties after eighteen years of service) – many on our Task Force believe it would be within Congress’s power to enact legislatively.

 

Some members of our Task Force, however, have a different view about Congress’s power. These members believe that Article III’s life-time tenure provision and separation-of- powers values – including an independent judiciary – categorically bar Congress from limiting the role of a Justice (or Justices) during their life term. Congress could only do so, these members argue, upon ratification of a constitutional amendment. Some of these members also support an amendment to the Constitution establishing a bright-line term limit and oppose the role-modification proposal outlined by Professors Amar and McConnell and that we urge in this statement.

 

However, we believe that the Amar/McConnell approach could generate enough bipartisan appeal to be promulgated through legislation, constitutional amendment, or a combination of both. Many presenters to this Commission detailed the history of the Supreme Court, prior efforts to expand the number of Justices, and the more recent processes and controversies involving the appointment of the last several Justices on the Court. A dramatic and exacerbate political differences and tensions which already are at an all-time high. In contrast, this approach cautiously seeks to revise the Court gradually and apolitically. It is also consistent with other familiar practices: judges of the lower federal courts can take senior status when they reach a certain age (depending on years of service), and many jurisdictions – including most U.S. states – impose term limits on judges.

 

Issues that need to be addressed to implement such a proposal include:

 

• A lengthy transition period is necessary. Logically (and perhaps constitutionally), this proposal would not impact Justices who currently sit on the Court. As each resigns, retires or passes away, a new Justice subject to the new system would be appointed, until there were nine such Justices in place. Thus, this proposal will take time to be fully implemented.

 

• We also propose legislation or amendment prohibiting Justices who have passed their first eighteen years from serving on panels of nine if the Senate fails to vote to confirm a new nominee (e.g., if the Senate has not confirmed 60 or 90 days after a nomination). This measure would deter the Senate from withholding confirmation to permit certain senior Justices to continue to sit on the panels of nine. Random assignment of senior Justices to fill out panels of nine would also discourage similar gamesmanship.

 

• We further suggest changes to the confirmation process, perhaps by Senate rule or by Constitutional amendment that would require an up-or-down floor vote on nominees within a set period, perhaps 60 or 90 days.

 

*****

 

A respected Supreme Court is crucial to the functioning of our democratic form of government. While the Court’s decisions will never, and should never, be free from controversy and debate, the reality is that the public’s general level of respect for the Court has eroded. This proposal is one step towards restoring that respect. Coming from the perspective of an organization that includes solo practitioners, large and small law firms, attorneys in the public sector, sitting and former judges and justices of our state and federal courts, and attorneys solution to enhance the integrity and respect of the Court, while instituting a needed change that, while difficult, is achievable.

 

We hope these comments are helpful to the Commission, and stand ready to assist the Commission or others in advancing efforts to achieve a solution along the lines we have suggested.

 

Respectfully submitted,

 

New York County Lawyers Association

Supreme Court Task Force

November 9, 2021

 

APPENDIX: ABOUT NYCLA AND THE TASK FORCE

 

The New York County Lawyers Association (NYCLA) is one of the oldest bar associations in the country and one of the first, if not the first, to allow and encourage membership regardless of race, creed, sex, ethnicity, or any other criteria apart from admission to the New York bar. In the words of our statement of mission: “Promotion of the administration of justice and reform in the law in the public interest” is our core value.

 

Chief Justice Charles Evans Hughes was an early and important president of our Association, and many present or former Justices have participated in our activities and spoken at our programs. To give only a few examples, Justice Marshall researched and drafted briefs in our law library; Justice Sotomayor spoke at our Association the evening before she was nominated to the Supreme Court; and Justice O’Connor participated in a full day program on the courts and the consumer debt crisis sponsored by our Justice Center and Fordham Law School.

NYCLA formed its Supreme Court Task Force to provide comments for this Commission because we have a profound respect for the Supreme Court and its role in our Republic and are deeply concerned about the public’s perception of the Court and the politics surrounding it. The Task Force is comprised of current and former officers of NYCLA and current and former chairs of several of its committees. 

Footnotes

1.  Submitted to the Commission on July 20, 2021, entitled “In support of a Congressional Statute Establishing an Eighteen-Year Limit on Active Supreme Court Service, With Emeritus Status thereafter and a Purely Prospective Phase-In” (available at: https://akhilamar.com/wp-content/uploads/2021/07/Amar-Testimony.pdf)
2.  “Written Testimony Before The Presidential Commission On The Supreme Court Of The United States,” dated June 30, 2021 (available at https://www.whitehouse.gov/wp-content/uploads/2021/06/McConnell-SCOTUS- Commission-Testimony.pdf)
3.  The views expressed here are those of the NYCLA Supreme Court Task Force, have not been approved by the New York County Lawyers Association Board of Directors, and do not necessarily represent the views of the Board.