Warning Against Proposed U.S. Supreme Court ‘Reforms’

Adam White of the American Enterprise Institute shares concerns about proposals from the Biden administration’s Supreme Court study commission.

The Supreme Court was established for an indispensable constitutional purpose: to decide cases under the rule of law. Any attempt to understand the Court must begin from that premise. And any attempt to reform the Court for other purposes would be recklessly shortsighted. …

… Since 1869, the Court’s size has remained stable, and for one and a half centuries the nine-justice bench has proved conducive to the justices’ work of deliberation, decision, and explanation.

To pack the Court would impair the Court, not improve it: destabilizing it, further politicizing it, and complicating its basic work of hearing and deciding cases under the rule of law. And one needs a willing suspension of disbelief not to see that Court-packing would inaugurate an era of re-packing, destroying the Court’s function and character as a court of law. …

… By tying Supreme Court vacancies and appointments directly and exclusively to the outcomes of presidential elections, a term-limits framework would further corrode the appearance of judicial neutrality and independence, making the Court a spoil not just of politics, but of presidential politics exclusively. …

… [A]spects of the Court’s work now involves vaster discretion, and reforms limiting its discretion may help the Court to function better as a court of law.

First, the Court’s power to select its own cases is almost entirely discretionary, which complicates and politicizes the Court’s work. Legislation setting clearer standards for granting writs of certiorari, or mandating judicial review of more kinds of cases, could help to make the Court’s caseload less a matter of judicial will and more a matter of judicial duty.

Second, the Supreme Court and lower courts’ power to grant preliminary injunctive relief, often with nationwide effect, would benefit from legislation that more clearly defines and constrains this aspect of judicial power and discretion.