⚖️Here we go!
Live-streaming today's meeting of the Presidential Commission on the Supreme Court of the United States.
Roll call happening now.
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Live-streaming today's meeting of the Presidential Commission on the Supreme Court of the United States.
Roll call happening now.
whitehouse.gov/pcscotus/publi…
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Now commissioners have turned off their cameras as co-chair Cristina Rodriguez offers opening remarks.
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Rodriquez mentions more than 100 public comments sent to the commission. Many recommend setting term limits, expanding court. Others support maintaining the status quo (and amending Constitution to fix the number at 9).
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Many comments raised concerns about the outside influence (aka money) dedicated to influence the appointment process etc.
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To find public comments go to commission's website, she said. But she did not mention the website url.
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Rodriquez has asked today's witnesses to turn on their cameras. She said their names very quickly. Too quickly for members of the public to hear, but I can provide them here.
Nikolas Bowie
Noah Feldman
Laura Kalman
Michael McConnell
Kim Scheppele
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Nikolas Bowie
Noah Feldman
Laura Kalman
Michael McConnell
Kim Scheppele
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Prof. Bowie's focus is on how SCOTUS is an anti-democratic institution. Problem is judicial review, which allows for the court to strike down a law passed by Congress.
Points to 2013 decision in Shelby v. Holder where 5 Justices struck down part of 1965 Voting Rights Act
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Points to 2013 decision in Shelby v. Holder where 5 Justices struck down part of 1965 Voting Rights Act
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I love Bowie's honesty about how difficult it is for law professors to criticize the Court. It's like an employee being asked to criticize their boss. Lawyers advance by praising judges.
Here's a link to his written testimony.
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Here's a link to his written testimony.
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Feldman says Court plays three primary roles which have evolved over time. "This is not your founding father's Supreme Court."
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Feldman's three
(1) Protection of of the rule of law
(2) Protecting fundamental rights and liberties
(3) Oversight of democratic processes
Here's the precise words from his written testimony
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(1) Protection of of the rule of law
(2) Protecting fundamental rights and liberties
(3) Oversight of democratic processes
Here's the precise words from his written testimony
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One odd thing about Noah Feldman's testimony is that he mispronounced his colleague Niko Bouie's surname.
Link to his testimony here
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Link to his testimony here
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Next up is Professor Laura Kalman, history department UC Santa Barbara.
She is discussing Feb. 1937 when FDR suggested adding six new justices for every justice who did not retire at age of 70.
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She is discussing Feb. 1937 when FDR suggested adding six new justices for every justice who did not retire at age of 70.
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Kalman said the court's current size is now a norm.
She says she challenges the conventional wisdom that FDR suffered from his own hubris.
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She says she challenges the conventional wisdom that FDR suffered from his own hubris.
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Here's a link to Kalman's compelling testimony. Really illuminating to hear her prospective on FDR's attempted court packing.
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📌 Fascinating. Kalman said FDR won the war even though lost the battle. The threat of court-enlargement with his bill and his win in 1936 helped move the court to the more liberal interpretations of the Commerce Clause, Taxing and Spending Power, and the Due Process Clause.
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We have Professor saying that the immediate cause of this Commission was candidate Biden being asked to come up with a court-packing plan. Says Biden wants a dispassionate response to this question.
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He says he agrees with "Noah" (whom he should have referred to as professor Feldman, IMHO) re affirming the court's independence.
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Professor Michael McConnell is the person speaking.
He says "further partisan poisonous acrimony" if Congress adds justices.
Says the institution will become "little more than an arm of the legislature."
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He says "further partisan poisonous acrimony" if Congress adds justices.
Says the institution will become "little more than an arm of the legislature."
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McConnell refers to Professor Kalman as Laura Kalman. I really think it is ideal to refer to your distinguish colleagues by their titles and surnames.
Odd to have a conservative act so informally.
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Odd to have a conservative act so informally.
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Our final witness on this first panel is Professor Kim Sheppelle, Professor of Sociology and International Affairs at Princeton.
Advocates for some reforms including an override mechanism (which is used in Canada).
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Advocates for some reforms including an override mechanism (which is used in Canada).
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She advocates ways of making the court not the only arbiter of what is constitutional. Also recommends a non-partisan judicial nomination process.
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Five commissioners will pose questions of this first panel to ask these questions on behalf of the entire commission.
By the way, here's the title of this first panel. Panel #1: The Contemporary Debate over Supreme Court Reform: Origins and Perspectives
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By the way, here's the title of this first panel. Panel #1: The Contemporary Debate over Supreme Court Reform: Origins and Perspectives
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Love this. Up first is @tribelaw, Professor emeritus Harvard Law. He's asking his first question of Professor Feldman.
Why would Congress be less protective of the rule of law, preservation of liberty and equality, and constitutional democracy over time and on balance.
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Why would Congress be less protective of the rule of law, preservation of liberty and equality, and constitutional democracy over time and on balance.
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Friends, if you have time, tune in now, or watch this at some other date. This entire day of witnesses is essential watching for those who care about the court and our democracy. Plus guarantee to raise your IQ several points.
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Among other things, Feldman said imagine a Congress were controlled by a party that was not yours.
Now @tribelaw invites @nikobowie to respond to Feldman.
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Now @tribelaw invites @nikobowie to respond to Feldman.
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In response Bowie said to consult with Prof. Schepple whose testimony invited us to compare our system of judicial review with other constitutional democracies.
"We can see that these sorts of systems work."
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"We can see that these sorts of systems work."
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And I am an idiot because I misspelled @nikobowie’s name there
Tribe asks McConnell a question next. He says he takes issue with professor Bowie. "Of course he's right that our system is less democratic. The question is whether less democratic is bad or good."
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McConnell said there are some good decisions of the Court that advanced democracy.
He said "unbridled democracy" is not always good.
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He said "unbridled democracy" is not always good.
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Tribe asked Bowie whether a riderless horse wouldn't run roughshod over rights.
Bowie: Removing supreme power of court to interpret the Constitution does not render us riderless.
He said he agrees with Feldman. Congress should also be far more democratic.
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Bowie: Removing supreme power of court to interpret the Constitution does not render us riderless.
He said he agrees with Feldman. Congress should also be far more democratic.
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Bowie rejected McConnell's argument that too much democracy is the problem.
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Next commissioner to ask questions is _____. I did not hear her name. Could someone help me out.
She asked a question of Professor Kalman.
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She asked a question of Professor Kalman.
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Kalman says the cudgel of the court-packing plan helped SCOTUS in 1937 to take advantage of the flexibility in existing doctrine that he had. That Corwin articulated in "The Twilight of the Supreme Court."
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Commissioner asked Kalman whether there was a revolution in the court in 1937.
Kalman said it began in 1934 and continued into the 40s.
But the "1937 moment" was key to keeping that revolution ongoing.
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Kalman said it began in 1934 and continued into the 40s.
But the "1937 moment" was key to keeping that revolution ongoing.
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The commissioner speaking is Alison LaCroix, professor of law at the University Chicago.
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LaCroix's line of questioning is excellent. She is also a member of the history department. BA & JD Yale, Phd Harvard. She is now questioning Feldman.
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Commissioner Thomas Griffith, former federal judge.
He needs to turn up his mic. He politely thanked all the panelists and posed his first question to McConnell.
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He needs to turn up his mic. He politely thanked all the panelists and posed his first question to McConnell.
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Griffith mentions that "norms were violated" in Supreme Court nomination processes. Asked McConnell to elaborate.
He said "certainly norms have been violated . ..begin with the nomination of Robert Bork."
[My eye roll].
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He said "certainly norms have been violated . ..begin with the nomination of Robert Bork."
[My eye roll].
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Shock, shock. McConnell said he does not think it violated a norm when the senate republicans refused to even consider Merrick Garland after Obama nominated him for SCOTUS.
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What is it about McConnell's manner of speaking that makes him sound sort of glib, like he's standing on the edge of a country club dining room on his third gin & tonic gossiping with a fellow golf-mate about the crowd.
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One proposal he would support is staggered 18 year terms as he thinks it will "lower the political temperature over the judicial selection process."
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Sorry I broke the link chain. Go here next
https://twitter.com/jentaub/status/1410237910100684804?s=20
Commissioner NYU Law Dean Trevor Morrison is focused on the court's independence. He asked Professor @nikobowie whether court itself be more enmeshed in democratic politics?
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Bowie said judicial independence is compatible with judicial independence and the rule of law.
Deferring to nine people about passing a voting rights act (referring to Shelby County decision in 2013).
Also spoke about value of multi-racial democracy
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Deferring to nine people about passing a voting rights act (referring to Shelby County decision in 2013).
Also spoke about value of multi-racial democracy
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❤️ This. @nikobowie said "Judicial review is an anti-democratic super weapon. If that super weapon has to exist, I would like to see it distributed equitably" instead of what we have now with Republican control since 1970. "I think the better solution is to disarm the court."
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Another great question from Dean Morrison. Asks Feldman about circumstances when he would believe court expansion would be justified. Also, what if as an empirical matter vast majority of Americans have lost trust in the court.
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Feldman says court expansion is a "break the glass measure."
If under extreme circumstances where court is not working the way it is meant to work.
He says we are not in a "crisis of legitimacy."
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If under extreme circumstances where court is not working the way it is meant to work.
He says we are not in a "crisis of legitimacy."
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Next commissioner asking questions is Professor Elise Boddie of Rutgers law. She addresses Prof. Sheppelle first.
Sheppele said one of her proposals looks reasonable in light of alternatives. Give Congress an override on SCOTUS decisions like it has on presidential vetoes.
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Sheppele said one of her proposals looks reasonable in light of alternatives. Give Congress an override on SCOTUS decisions like it has on presidential vetoes.
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"I'm actually in favor of strong courts . . . for some of the reasons Noah Feldman indicated." (Still wondering why no titles are being used here. Maybe I should just chill on this)
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Boddie asks whether there the risks to not pursing court reform.
Yes, says Sheppelle. Every judicial nomination and confirmation process has become so polarized.
She wants to change that without destroying the court.
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Yes, says Sheppelle. Every judicial nomination and confirmation process has become so polarized.
She wants to change that without destroying the court.
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Her other big concept is to make it easier to amend the Constitution. . . she has more ideas.
Bottom line is that we are in "serious trouble" now.
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Bottom line is that we are in "serious trouble" now.
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Feldman said he would know the balance was broken if the court "consistently" decides cases that thwarts will of the overwhelming majority of the people.
Says choice is another Civil War or this type of Supreme Court?
That seems like never. Remember the New Yorker cartoon
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Says choice is another Civil War or this type of Supreme Court?
That seems like never. Remember the New Yorker cartoon
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Panel one is done. Now we will hear from Panel two after an 18 minute break. We will restart at 11 am
Topic is: The Court’s Role in Our Constitutional System
See you at 11
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Topic is: The Court’s Role in Our Constitutional System
See you at 11
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We are back. Co-chair Bob Bauer is now introducing and moderating the next panel.
He may win the book collection award for the day.
Link here to follow
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He may win the book collection award for the day.
Link here to follow
whitehouse.gov/pcscotus/publi…
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Our first panelist is Rosalind Dixon, Professor of Law, at the University of New South Wales (Australia).
Other witnesses will be
Charles Fried
Samuel Moyn
Maya Sen
Ilan Wurman
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Other witnesses will be
Charles Fried
Samuel Moyn
Maya Sen
Ilan Wurman
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Here's a link to Professor Dixon's testimony.
Touched on several points including that she agrees with a legislative override as a "democratically desirable reform" but does not see a constitutional amendment to be viable or likely
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Touched on several points including that she agrees with a legislative override as a "democratically desirable reform" but does not see a constitutional amendment to be viable or likely
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Dixon supports judicial term limits.
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The 18-year term suggested by many is a very long term. She said other constitutional democracies have a shorter term. Suggested perhaps 12 years like Germany and South Africa have adopted.
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Dixon does not think we are a break-glass moment yet. But the commissioner should reserve all options on the table. She does not believe it is "appropriate" at the time to expand the court or cut back its jurisdiction.
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"Supreme Court reform is a political matter" says Professor Samuel Moyn of @YaleLawSch, our next expert. None are unlawful (other than perhaps term limits).
Yes. Exactly.
"Constitutional or legal expertise" should have little influence on this debate.
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Yes. Exactly.
"Constitutional or legal expertise" should have little influence on this debate.
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His words resonate. Here's a quote from his testimony: "The problem to solve is not that the Supreme Court has lost legitimacy, understood as the current trust of enough observers, but that it thwarts the democratic authority that alone justifies our political arrangements.
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Next up is Professor Maya Sen, Professor of Public Policy at Harvard
"The court and its appointment have become severely politicized."
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"The court and its appointment have become severely politicized."
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Sen supports term limits. Quoting her written testimony "perhaps most importantly, term limits have the potential to reduce the political incentives that have led to high-stakes, highly politicized appointment."
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Sen says wide-bipartisan support exists for term limits for Justices "with no differences between Republicans and Democrats."
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Next up is Professor Ilun Wurman of Sandra Day O'Connor College of Law, Arizona State University.
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Here's a link to Wurman's testimony
He promotes originalism, explaining that if the gay marriage case Obergefell v. Hodges been decided under originalist view of Constitution, then it would be left to the states. (That's a defense!?)
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He promotes originalism, explaining that if the gay marriage case Obergefell v. Hodges been decided under originalist view of Constitution, then it would be left to the states. (That's a defense!?)
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Now do Shelby. Geeeeeez. Leaving it to the states is how some states are denying black votes access to the ballot.
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Says term limits cannot operate alone, but have to be part of an amendment to the confirmation process.
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Now a slate of Commissioners will ask questions. First up is Professor Richard Fallon of Harvard Law. He is zooming from "down east Maine" and may have trouble with his internet connection.
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Fallon's first question is for Moyn about "jurisdiction stripping."
Let's say Congress passes a statute with a part A and a part B. (We could not here what he said. Hope he repeats.
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Let's say Congress passes a statute with a part A and a part B. (We could not here what he said. Hope he repeats.
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I think what he says is part A is a ban on something (maybe abortion) and part B forbids anyone from challenging the constitutionality of part A.
We have lost Fallon's connection.
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We have lost Fallon's connection.
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Moyn is going to answer the "drift of the question."
Said imagine the affordable care act had been immunized in such a way that it would not have faced a series of challenges.
But there is the hypo that Fallon raised. Yes, it's scary, but it's not legally preempted.
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Said imagine the affordable care act had been immunized in such a way that it would not have faced a series of challenges.
But there is the hypo that Fallon raised. Yes, it's scary, but it's not legally preempted.
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Moyn says that "doing nothing presents risks" as do each of the reforms.
But all that matters for the legal experts on the Commission is whether something is legally "off the table."
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But all that matters for the legal experts on the Commission is whether something is legally "off the table."
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He thinks it is worth trying on a statute by statute basis, for example something that affords Americans of new rights.
But, it's precisely in the case of important statutes that we would want to have jurisdiction.
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But, it's precisely in the case of important statutes that we would want to have jurisdiction.
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Fallon asks for clarification of what Moyn means by a political court. Does that mean "partisan" to promote a party's platform. Or does political mean to resolve constitutional uncertainties.
Moyn says he means both, but certainly the second.
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Moyn says he means both, but certainly the second.
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⚖️Could not agree more with this from @samuelmoyn.
"When there are gaps, indeterminacies and ambiguities, the Court is always acting politically by restraining others from devising their own interpretations."
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"When there are gaps, indeterminacies and ambiguities, the Court is always acting politically by restraining others from devising their own interpretations."
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Professor Sen agrees that the court is a political body. If it were not, Garland would be on the court now.
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Next set of questions from Professor Tara Grove of University of Alabama School of Law.
Her first question is directed at Professor Sen.
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Her first question is directed at Professor Sen.
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Says we should address the "bad incentives" that encourage the political gamesmanship over court vacancies (I think she said this).
She said politicians are sensitive to public sentiment about satisfaction with the court as could be tied to public not following law
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She said politicians are sensitive to public sentiment about satisfaction with the court as could be tied to public not following law
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Grove asked whether court expansion could enhance the Supreme Court's legitimacy.
Sen says she and co-authors don't see evidence that this will end up being a tit-for-tat with Dems and Rs just expanding the court when they have control of the Congress.
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Sen says she and co-authors don't see evidence that this will end up being a tit-for-tat with Dems and Rs just expanding the court when they have control of the Congress.
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Sen says she agrees with Moyn that "reform will be filtered through partisan concerns."
She said public response changes depending on political actors who control White House and Senate.
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She said public response changes depending on political actors who control White House and Senate.
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Really good questions from Grove. Next question posed to Professor Dixon.
Dixon said that a decision on court expansion "needs to be taken with the world in view."
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Dixon said that a decision on court expansion "needs to be taken with the world in view."
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Grove has a question for Moyn.
She says why doesn't he think that jurisdiction stripping is unconstitutional? Says democratic and republican leadership believe it is.
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She says why doesn't he think that jurisdiction stripping is unconstitutional? Says democratic and republican leadership believe it is.
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Moyn says "there is very little to go on" as to the Constitutional barriers to limiting the Court's jurisdiction.
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And, legal views are changing with new scholarship. "I do want to acknowledge that it's the job of experts not just to get things right legally, but also to explain when the division is so intense" that it's up to political actors to know that they are not limited.
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The next commissioner up is Judge Nancy Gertner. She has a question for Dixon.
Dixon says "we should be particular cautious" about jurisdictional stripping as she does not think it works well or is resilient. Thinks term limits are better on finality
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Dixon says "we should be particular cautious" about jurisdictional stripping as she does not think it works well or is resilient. Thinks term limits are better on finality
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Gertner asks whether it "send the wrong message to authoritarian countries" to limit judicial terms.
Dixon said no because there are no other countries with unlimited judicial terms.
Though she thinks 8 years is too short.
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Dixon said no because there are no other countries with unlimited judicial terms.
Though she thinks 8 years is too short.
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And 18 years is too long she thinks.
(Notably this like other arguments are largely policy-oriented, not about the limits of the law).
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(Notably this like other arguments are largely policy-oriented, not about the limits of the law).
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Moyn says the main question is whether the tool is good for us for our self-rule. Shouldn't emphasize whether a tool would be misused abroad.
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Another good question from Gertner, asking Dixon about the override provision as Canada has.
She said she's not as confident it could be achieved by statute (as opposed to constitutional change).
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She said she's not as confident it could be achieved by statute (as opposed to constitutional change).
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Greater concern that we would put too much faith in it, not whether it would be too strong.
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Moyn when asked says he agrees with Professor Dixon.
He said it's a "blessing in disguise" that we can multiply the ideas.
Says a statutory reform of legislative override is compatible with the law and "it might work."
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He said it's a "blessing in disguise" that we can multiply the ideas.
Says a statutory reform of legislative override is compatible with the law and "it might work."
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Next commissioner if Professor Michael Ramsey, Univ. San Diego. Asking Wurman about originalist view of this.
He said Hamilton and Marshall believe the court would only overturn statutes if there was something like a clear error/conflict with the Constitution.
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He said Hamilton and Marshall believe the court would only overturn statutes if there was something like a clear error/conflict with the Constitution.
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He said at the end of the day the judge is convinced that the statute is unconstitutional, then that judge has to vote against that statute.
He said he does not think Hamilton meant judge had to believe he was 95 percent sure.
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He said he does not think Hamilton meant judge had to believe he was 95 percent sure.
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Ramsey said, "we don't have an originalist court."
Aren't reforms to reduce the power of the court potentially at least a compromise that should be attractive to both originalist and non-originalist.
Interesting Wurman said Shelby County was not an originalist decision.
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Aren't reforms to reduce the power of the court potentially at least a compromise that should be attractive to both originalist and non-originalist.
Interesting Wurman said Shelby County was not an originalist decision.
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Wurman noted the Constitution also must with protect personal liberty in cases when the democratic majority hurts the minority. So doesn't think a supermajority of votes on the Court is ideal.
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Ramsey asked Dixon about courts and supermajority voting on decisions.
She said Supreme Court of Japan is an active statutory interpreter, but rarely overturns a statute.
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She said Supreme Court of Japan is an active statutory interpreter, but rarely overturns a statute.
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Next commissioner is Law Professor Kate Andrias (headed from Michigan to Columbia Law this fall).
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Andrias asks a question of Wurman about departmentalism
What is "departmentalism" you ask? Here you go from @kewhittington on @lawfareblog
Link lawfareblog.com/departmentalis…
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What is "departmentalism" you ask? Here you go from @kewhittington on @lawfareblog
Link lawfareblog.com/departmentalis…
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Andrias asks Moyn about the various reforms he favors
He says jurisdiction stripping and court-expansion is also at risk of being a repeated act of successive majorities in Congress, but the other reforms like legislative override are not as much.
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He says jurisdiction stripping and court-expansion is also at risk of being a repeated act of successive majorities in Congress, but the other reforms like legislative override are not as much.
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He would demote jurisdiction stripping as matter of personal opinion though it's supported by Constitution.
His opinion is that "when the time is right" all of this should be tried.
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His opinion is that "when the time is right" all of this should be tried.
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Moyn says we need to rethink some of our civics education. Says as students we are given information about the court's powers that does not bear out according to most scholars.
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Sen said that a 6-3 court is very different from a 5-4 split.
If you impose a supermajority there will be a lot of gridlock. And it would move more to the right. Lot of red flags.
"I would recommend further study of that proposal" before adopting, she said.
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If you impose a supermajority there will be a lot of gridlock. And it would move more to the right. Lot of red flags.
"I would recommend further study of that proposal" before adopting, she said.
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Bauer announced that they are breaking for lunch until 1:30.
See you then!
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See you then!
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We are back. The third panel starts now. The topic is Case Selection and Review at the Supreme Court.
The witnesses will be
Samuel Bray
Michael Dreeben
Christina Swarns (who cannot appear as she has a conflict)
Stephen Vladeck
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The witnesses will be
Samuel Bray
Michael Dreeben
Christina Swarns (who cannot appear as she has a conflict)
Stephen Vladeck
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Professor Samuel Bray of Notre Dame Law School begins by discussing the courts so-called "Shadow Docket" where the court issues rulings without a written opinion.
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Provocatively, Bray rejects notion that the court is the final word on the meaning of the law.
He also emphasizes shared interpretive authority of all three branches and the American people. (We touched on this above as "departmentalism).
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He also emphasizes shared interpretive authority of all three branches and the American people. (We touched on this above as "departmentalism).
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Now Bray is discussing the shadow docket and says we should give those decisions less weight.
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Next up as a witness is Michael Dreeben. His written testimony is not actually testimony, but a biography. Dreeben is highly respected appellate lawyer. Currently a partner at O'Melveny and Myers, he also served as Deputy Solicitor General
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Dreeben is running through various suggestions for reform explaining his objections so far to each.
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He addressed tension between SCOTUS power of final decision as thwarting democracy
References Carolene Products fn 4 about "discrete and insular minorities" and said court is in best position to protect those rights.
Read it here:
supreme.justia.com/cases/federal/…
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References Carolene Products fn 4 about "discrete and insular minorities" and said court is in best position to protect those rights.
Read it here:
supreme.justia.com/cases/federal/…
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Next expert is @steve_vladeck. He will focus his testimony on the "shadow docket." Takes issue with Bray's analogy of shadow docket rulings as just like preliminary injunction at a district court.
He said in reality the SCOTUS rulings are treated as the last words.
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He said in reality the SCOTUS rulings are treated as the last words.
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Vladeck said the court is changing the law on the ground beyond the facts of a specific case under the guise of the emergency orders/shadow docket.
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First to ask question on the commission is @Sifill_LDF of the @NAACP_LDF. Her first questions are for Prof. Vladeck.
Here's his testimony, by the way
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Here's his testimony, by the way
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He tells Ifill that here's an uptick in these cases and the court is doing things in these cases that it has not done before, including shifts in doctrine and addressing rights that were not clear before.
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Ifill asks Vladeck whether these are independent concerns (the manner in which rulings are made without sufficient time to deliberate and changes in doctrine).
He pointed to the most-favored-nations interpretation in the Tandon decision without hearing from parties.
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He pointed to the most-favored-nations interpretation in the Tandon decision without hearing from parties.
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Said similar questions in the Tandon case (which was shadow docket four page analysis) compared to the Fulton v. Philadelphia case (permitting discrimination by Catholic adoption agency). Said the latter case with full briefing and arguments was less extreme than Tandon.
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Students at @UTAustin law school are so lucky to have Vladeck on the faculty. Take whatever course you can from him.
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Of course I feel the same way about the other experts appearing today. Just mentioned that now because of this particularly fascinating research topic of his -- the shadow docket.
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Next up is Professor @WilliamBaude of the University of Chicago. He'll start with questions for Bray. Wants to know why he's not as concerned about shadow docket and also whether court is doing enough to balance equities. Also is this about nationwide injunctions.
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Baude begins by agreeing with Vladeck on the point re balancing the equities. Also concerned that a quick decision will lock in the justices and might not budge on the merits.
He mentioned yesterday's shadow docket decision on eviction moratorium stay.
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He mentioned yesterday's shadow docket decision on eviction moratorium stay.
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Sorry that should say Bray.
On question of whether national injunctions is driving shadow docket, Bray said yes and no. In terms of numbers, it's a small part. But if we are counting times Trump solicitor general asked for emergency relief, it's bigger.
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On question of whether national injunctions is driving shadow docket, Bray said yes and no. In terms of numbers, it's a small part. But if we are counting times Trump solicitor general asked for emergency relief, it's bigger.
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Braude asks Bray about divide between him and Vladeck -- as whether Court is changing the status quo. But, what is the status quo, Braude says.
Bray says there might be a terminological disagreement, but may be more.
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Bray says there might be a terminological disagreement, but may be more.
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For Bray, status quo is the "last peaceable moment." He says Vladeck means the status of case when it comes to SCOTUS.
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Bray says it's like a preliminary injunction.
Vladeck say she disagrees on substance not really on nomenclature.
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Vladeck say she disagrees on substance not really on nomenclature.
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Vladeck says there's a world of difference between a statute that's been on books for 30 years compared to a fresh executive order. . .
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Vladeck again resists preliminary injunction (PI) analogy again because the point of SCOTUS is more than deciding whether the district court is right. Should have bigger justification for upsetting the litigation status quo.
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"I have no problem with the existence of a shadow docket."
He just wants higher standards for emergency orders etc.
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He just wants higher standards for emergency orders etc.
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Commissioner speaking now is Professor Burt Huang of Columbia Law School. First question is for Dreeben.
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Among Huang's questions for Dreeben, is there a way to broaden the court's seeking of input beyond amicii. How would you design a complement.
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True! Dreeben says the court has challenges related to "getting information about the world." He said they are "a little trapped inside the marble palace."
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He said that the government said CVSGs have a well-deserved reputation for candor.
What's a CBSG, you ask? "Call for the Views of the Solicitor General."
Sorry Americans at home. It's hard to understand the jargon.
Here's more on that: americanbar.org/groups/environ…
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What's a CBSG, you ask? "Call for the Views of the Solicitor General."
Sorry Americans at home. It's hard to understand the jargon.
Here's more on that: americanbar.org/groups/environ…
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I am not sure I heard an answer exactly on soliciting views of other voices. Sorry. I was busy googling to find a good source for the definition for CVSG.
But bottom line was I don't think he recommended seeking outside voices.
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But bottom line was I don't think he recommended seeking outside voices.
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Next up is Commissioner @AndrewMCrespo, Professor at Harvard Law School.
Crespo poses a question for Bray about staying the execution of someone on death row.
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Crespo poses a question for Bray about staying the execution of someone on death row.
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Crespo asked about Bray's recommendation that the balance should shift whereby the Court should lean toward staying, not accelerating executions.
What could or should be changed about courts internal norms and practices, standard of review, votes needed, etc.
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What could or should be changed about courts internal norms and practices, standard of review, votes needed, etc.
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Bray responds to question on how to operationalize his and fellow witness (who could not appear in-person) Christina Swarns from the Innocence Project.
Here's her testimony: whitehouse.gov/wp-content/upl…
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Here's her testimony: whitehouse.gov/wp-content/upl…
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He does not exactly provide the mechanics needed though, or at least I did not hear that.
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Crespo says hears Bray's intervention is to embrace his position. Now asking Vladeck about the advisability of congressional action.
1. statutorily mandated asymetric standard of review
2. larger number of votes to vacate lower court stay
3. statute barring vacating stay
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1. statutorily mandated asymetric standard of review
2. larger number of votes to vacate lower court stay
3. statute barring vacating stay
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Vladeck tells Crespo that option one is constitutional. As for 2, he said Court would just work around such a rule. And for 3, what Crespo referred to as mini-jurisdiction stripping, says it looks constitutional. Not likely to run afoul of due process provisions.
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Vladeck says he would encourge the Court to open the doors to death row inmates. This would take pressure of shadow docket and more.
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Crespo asks a question of Dreeben of thoughts on lowering the number of votes needed to halt an execution.
Dreeben said "it's really for the court to determine" the number of votes.
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Dreeben said "it's really for the court to determine" the number of votes.
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Dreeben said a solution is that if 4 votes are there to hear the case, then for purpose of the stay, a courtesy 5th vote should be applied so that the execution does not happen while waiting for the merits hearing.
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Crespo asked Dreeben of the state of the criminal defense bar at SCOTUS. Crespo referenced what Justice Kagan said about indigents at the Supreme Court "arguing with one hand tied behind their backs."
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Dreeben says defense bar has improved due to a few developments. Clinics at law schools that can bring these cases. Big law firms who are taking some of these cases. Supreme Court clinics such as at @GeorgetownLaw and appellate public defenders and @NACDL
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Crespo asks should there be an office of the defenders general?
Would you favor that (or another approach) to address power imbalance?
Dreeben said no.
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Would you favor that (or another approach) to address power imbalance?
Dreeben said no.
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The other concept was a "standing amicus" I think.
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There are 20 minutes left. Another round of questions from the commissioners.
We have @Sifill_LDF asking Bray to respond to Vladeck's observation that the court expects lower courts to see some precedential signs in its shadow docket. Example is public charge rule decision
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We have @Sifill_LDF asking Bray to respond to Vladeck's observation that the court expects lower courts to see some precedential signs in its shadow docket. Example is public charge rule decision
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Bray says Fulton does not have any citations to Tandon except in Gorsuch's concurrence. Seems like there was a citation that came out, Bray said.
Here's Tandon: supremecourt.gov/opinions/20pdf…
Here's Fulton:
supremecourt.gov/opinions/20pdf…
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Here's Tandon: supremecourt.gov/opinions/20pdf…
Here's Fulton:
supremecourt.gov/opinions/20pdf…
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Ifill's next question is for Vladeck. Wouldn't more information increase the divisiveness?
Vladeck says we don't see that all the time on merits docket, where public is interested when there are certain strange bedfellow decisions.
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Vladeck says we don't see that all the time on merits docket, where public is interested when there are certain strange bedfellow decisions.
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Vladeck said there were twelve 5-4 merits decision on the last merits docket. Eleven 5-4 decisions on the last complete year shadow docket.
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He said his concern is not Tandon's precedential effect. It's that the court chastised the 9th Circuit for not treating four previous unsigned orders precedential effect.
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Baude aks why more unusual lineup in merits than shadow docket. Vladeck said because more on merits docket than shadow involve statutory interpretations that don't turn on methodological commitments. Real uptick in shadow docket topics with ideologoical valences
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Vladeck clarified that he meant direct appeals to SCOTUS for death penalty cases for method of execution and spiritual advisor piece, not entire case.
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Baude asks about the Court taking cases for error correction.
Dreeben says it should do so in way that is even-handed in habeas and qualified immunity cases.
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Dreeben says it should do so in way that is even-handed in habeas and qualified immunity cases.
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Huang has more questions as well, directed at Dreeben.
Categories of cases that court would take, what is the role of the elite Supreme Court bar and success rates in granting cert.
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Categories of cases that court would take, what is the role of the elite Supreme Court bar and success rates in granting cert.
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Dreeben said people who argue before SCOTUS are better at mind meld needed. Someone who does 100 brain surgeries is better than someone doing first.
(This differs from his earlier comment lawyers who represent ordinary criminal defendants aren't on uneven playing field)
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(This differs from his earlier comment lawyers who represent ordinary criminal defendants aren't on uneven playing field)
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Now on break until 3:20. I really appreciate how this is running on time.
See you then.
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See you then.
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Let's do this. Final panel is starting now. This is a meeting of the Presidential Commission on the Supreme Court of the United States. Things should wrap up at 5
The topic is Access to Justice and Transparency in the Operation of the Supreme Court
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The topic is Access to Justice and Transparency in the Operation of the Supreme Court
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The panelists will be
Deepak Gupta
Amy Howe
Allison Orr Larsen
Judith Resnik
Russell Wheeler
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Deepak Gupta
Amy Howe
Allison Orr Larsen
Judith Resnik
Russell Wheeler
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Gupta is up first. He commends the commission for caring about access to justice issues. He says his job is to work within the system, but he is a reformer. Gupta founded the firm Gupta Wessler.
whitehouse.gov/wp-content/upl…
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whitehouse.gov/wp-content/upl…
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He said of the approximately 70 advocates the Court has invited to argue cases for litigants, only 8 were women. He said he was the only fourth person of color when he was invited.
Tend to hire their own law clerks. Overwhelmingly white and male.
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Tend to hire their own law clerks. Overwhelmingly white and male.
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Gupta said corporate dominance means that the most talented lawyers (repeat players from these firms) will not bring cases on behalf of consumers because it would harm their clients.
Says we need a specialized plantiffs and public interest appellate bar.
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Says we need a specialized plantiffs and public interest appellate bar.
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Aspects of the Supreme Court's work lack transparency, he said.
Last October a case he argued was broadcast live on C-SPAN (audio). Sky won't fall if the court broadcasts hits hearings live.
This was due to Covid. Should continue, he said.
By the way he WON that case.
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Last October a case he argued was broadcast live on C-SPAN (audio). Sky won't fall if the court broadcasts hits hearings live.
This was due to Covid. Should continue, he said.
By the way he WON that case.
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The case Gupta won to which I refer is Ford Motor v. Montana Eighth Judicial Circuit Court et al
supremecourt.gov/opinions/20pdf…
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supremecourt.gov/opinions/20pdf…
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Next witness is Amy Howe ( @AHoweBlogger). She is a co-funder of @SCOTUSblog
She says it is "unfathomable" that we would have to wait until the end of the week to hear the audio of the argument.
Live video, even better.
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She says it is "unfathomable" that we would have to wait until the end of the week to hear the audio of the argument.
Live video, even better.
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Howe notes that "the sky did not fall" (quoting Gupta) by having live audio of Supreme Court oral argument available to the public.
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Professor Allison Larsen of William & Mary Law School is next witness. She is discussing amicus briefs (offering a variety of acceptable pronunciations for us). Justices "are awash in a sea of amicus briefs."
Not link to written testimony but to bio
law2.wm.edu/faculty/bios/f…
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Not link to written testimony but to bio
law2.wm.edu/faculty/bios/f…
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Not arguing to abolition of amicus briefs. Said this is not a partisan issue. She thinks the problem that the Supreme Court's hunger for information has outgrown the amicus system.
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Now we have Professor Judith Resnick of Yale Law School.
Here's her testimony: whitehouse.gov/wp-content/upl…
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Here's her testimony: whitehouse.gov/wp-content/upl…
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Resnick focuses on how very many changes the federal courts have endured over many decades. She also noted that time-limited federal judges do exist throughout the system. The Court has also redesigned and needs more redesign.
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Since early 1900s to today, federal judgeships have grown from 116 to 870 (including SCOTUS), Resnick explained.
See this chart from her written testimony
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See this chart from her written testimony
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Another chart shows volume of cases increasing in federal courts
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"A few people holding power for so long is a genuine problem" Resnick asserts. I agree.
She noted we can look right here at state and federal courts for some reform ideas for SCOTUS.
Really must read her testimony.
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She noted we can look right here at state and federal courts for some reform ideas for SCOTUS.
Really must read her testimony.
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Next up is supposed to be Russell Wheeler, but his audio is really odd. Like hearing a chipmunk while you are getting your teeth drilled.
He dialed back in and out of the bat began by saying, "there's a "lot of disinformation" about Court.
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He dialed back in and out of the bat began by saying, "there's a "lot of disinformation" about Court.
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He is a visiting fellow at Brookings with a long term of service at the Federal Judicial Center.
One of his key points is that Code of Conduct for United States Judges established by the Federal Judicial Center ”does not “apply” to members of the Supreme Court.
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One of his key points is that Code of Conduct for United States Judges established by the Federal Judicial Center ”does not “apply” to members of the Supreme Court.
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We now have the first commissioner asking questions of the panel. I did not catch her name. She poses her question for Gupta re impact on Court (at cert stage) or on the merits of having this elite group of lawyers.
False positives or false negatives?
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False positives or false negatives?
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Gupta says it's both. Court may take cases they really don't need to or avoid ones that they should take.
He referred us to a piece by Prof. Richard Lazurus.
Expert advocates can shape the docket.
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He referred us to a piece by Prof. Richard Lazurus.
Expert advocates can shape the docket.
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He said only a small segment of lawyers know the "dark arts" of the Supreme Court cert process.
Court relies on elite advocates to help sift through
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Court relies on elite advocates to help sift through
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Can someone tell me the name of this commissioner?
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Resnick said you heard from Gupta about how cases that Court decides to hear can be skewed by elite lawyers. "The Court is currently sitting on a dysfunctional system."
A smorgasbord of options.
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A smorgasbord of options.
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The Court could invite more information from the court of appeals. We could think of ways that the Court could own that it's sitting on a problem and work with Congress to develop a whole set of practices of which cert is one.
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She asked Gupta why he thinks disclosing the Justices vote on cert would be helpful.
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Gupta says he is not advocating for any legislation, but instead hope the Court would adopt these reforms.
She had also asked him whether list of cases considered should be made public.
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She had also asked him whether list of cases considered should be made public.
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I figured out who this commissioner is. Professor Margaret Lemos of Duke Law. She posed a question for Allison Larsen.
She said "there's a thud factor" when the clerk gets a cert petition when they get a giant stack of amicus briefs.
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She said "there's a thud factor" when the clerk gets a cert petition when they get a giant stack of amicus briefs.
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Now Professor Olatunde Johnson of Columbia Law School (@OlatiJ). She has a question for Deepak Gupta.
He thinks Court should and does from time to time tell us why they take or do not take a case. (From merits decision or from single justice or multiple justice dissents).
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He thinks Court should and does from time to time tell us why they take or do not take a case. (From merits decision or from single justice or multiple justice dissents).
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Gupta says law clerks can receive a $350,000 bonus after leaving a SCOTUS clerkship to become an associate at a corporate law firm. So they bring that inside knowledge and expertise to that part of the bar.
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Johnson poses a question to Howe now about access to the courts, including televised arguments.
"What do you think is really gained from video" as opposed to just audio.
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"What do you think is really gained from video" as opposed to just audio.
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Howe said there are nuances to the justices' body language that you cannot capture on the audio.
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Howe said there are just 50 seats reserved for members of the public. People wait in line for days to get a seat.
Said the first 9 of 10 people in line for the Obamacare case were paid line standers.
Not truly open to the public. People want to see these arguments
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Said the first 9 of 10 people in line for the Obamacare case were paid line standers.
Not truly open to the public. People want to see these arguments
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In terms of the Justice's privacy, given their power, Howe does not think that should factor in.
She said litigants would not need to seen at all. Gallery does not need to be shown.
Moreover some litigants seek press on steps of Court.
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She said litigants would not need to seen at all. Gallery does not need to be shown.
Moreover some litigants seek press on steps of Court.
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Howe thinks that the public should know more about why the justices recuse themselves.
Also to get financial disclosures you have to request and then they send you on a thumb drive. . .etc
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Also to get financial disclosures you have to request and then they send you on a thumb drive. . .etc
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Next is emeritus professor Walter Dellinger, Duke Law School. He has served as solicitor general. His sound is not very good.
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He asked Larsen what is the reason for more amicus briefs.
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Larsen said it has gotten easier to assemble a Brandeis Brief these days.
Larsen is "worried" about online blogging and tweeting.
Well, excuse me. . . lol.
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Larsen is "worried" about online blogging and tweeting.
Well, excuse me. . . lol.
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She prefers amicus briefs in their current state over a "free for all"
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Dellinger asked Howe whether any concern about market sensitive information limited to those inside court. Selective disclosure.
Howe said was a problem as recently as 10 years ago when was a gap between when opinions were released and when published online. No gap now.
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Howe said was a problem as recently as 10 years ago when was a gap between when opinions were released and when published online. No gap now.
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However still is a time gap with oral arguments.
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He had a question for Resnick re cert granted cases when appellate courts mark cases "not for publication."
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Or maybe the question was about citing cases that were not for publication.
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The final commissioner with questions is Professor David Levi of Duke Law. He will have questions about rules of refusal and code of conduct. He has a question for Wheeler.
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Wheeler believes Congress can create disclosure rules that the justices have to follow regarding recusal. Presently there is no obligation to explain reason for recusal.
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I am starting to fade . . . .all of this code of conduct talk is making me fatigued.
Why is everyone so damn polite. Congress should require disclosures.
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Why is everyone so damn polite. Congress should require disclosures.
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I wonder if there will be another round of questions or if this is a wrap after this round.
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Panel done. Bob Bauer has notes for us. Next meeting is Tuesday, July 20. There will be six additional panels.
So glad these meetings are open to the public. Very illuminating. Submit public comments ideally before October, but Commission will accept until mid November
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So glad these meetings are open to the public. Very illuminating. Submit public comments ideally before October, but Commission will accept until mid November
212/212
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