The Presidential Commission on the Supreme Court of the United States unanimously voted to submit its final report to President Biden on Dec. 7. The report explores a variety of proposals to reform the Court but does not make specific recommendations.
David F. Levi, director of the Bolch Judicial Institute at Duke Law School and a former federal judge, served on the Commission, along with Duke Law professors Walter Dellinger and Margaret H. Lemos, a faculty adviser to the Bolch Judicial Institute.
The bipartisan Commission included 36 legal scholars, former federal judges, and practitioners whose expertise spans constitutional law, history, and political science. They were charged with analyzing the principal arguments for and against reforming the Supreme Court as well as specific topics such as the genesis of the reform debate; the Court’s role in the constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.
Established in April 2021, the Commission met for more than six months and held multiple public hearings to receive comments from other experts and additional groups. The report’s preface stressed that the Commission aimed to offer critical appraisal of reform proposals. “Given the size and nature of the Commission and the complexity of the issues addressed, individual members of the Commission would have written the Report with different emphases and approaches,” the report said. “But the Commission submits this Report by unanimous vote, in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”
Levi’s comments during the final Commission hearing were noted in The New York Times and The Wall Street Journal. “Each of these proposals, to some considerable degree, reduces judicial independence and therefore increases the likelihood that we will lose the freedom that judicial independence was and is designed to protect. All around the world aspiring democracies look to our judiciary as the model,” Levi said, while autocrats resort to “changing the size of their highest courts” and limiting the judicial tenure to undermine the rule of law.
The Wall Street Journal also quoted Dellinger, a former acting Solicitor General, who suggested that in the current political climate, it remained unclear when “someone would have the power to invoke these reforms and what that would mean.” He took the long view, saying: “We hope that the report’s explications of the issues might be useful a century from now.”
- Levi’s comments may be viewed here starting at approximately minute 28:00.
- Dellinger’s comments may be viewed here starting at approximately minute 46:00.
- Find the full report on the White House website.
- Read an editorial in the Washington Post by David F. Levi and Thomas B. Griffith: Opinion: The Supreme Court isn’t broken. Even if it were, adding justices would be a bad idea.