Presidential Commission on the Supreme Court of the United States
- ↑ McConnell Testimony, supra note 128, at 1 (“Any attempt to increase the size of the Court would be widely, and correctly, regarded as a partisan interference with the independence of the Court. This would be a severe blow to the reputation of the Court as a legal institution … .”); Presidential Commission on the Supreme Court of the United States 16 (July 20, 2021) (written testimony of Stephen E. Sachs, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf (“[R]eforms that are not perceived by both sides as enhancing the courts’ legitimacy will never succeed in doing so.”).
- ↑ See Feldman Testimony, supra note 98, at 9 (“Court-packing would likely become a tit-for-tat practice” and would “drastically reduc[e] the court’s institutional legitimacy.”).
- ↑ See Adam Chilton, Daniel Epps, Kyle Rozema & Maya Sen, The Endgame of Court-Packing 2–3 (May 3, 2021) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835502 (“We find that the median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. … [I]f court-packing happens every time the president’s party has appointed a minority of justices on the Supreme Court and there is unified government—the worst-case tit-for-tat scenario cited by opponents of court-packing—we find that the median size of the Court across the simulations is 29 justices after 50 years and 63 justices after 100 years.”).
- ↑ Jackson Testimony, supra note 106, at 20–21 (“[E]xpanding the Court simply to give one specific President the power to fill seats … risks turning the Court into even more of a perceived political football.”); see also Supreme Court Practitioners’ Committee Testimony, supra note 128, at 90 (“If Democrats were to [add seats for the purpose of affecting the Court’s jurisprudence] now, Republicans would surely adopt the same tactic when they next have the opportunity. This would exacerbate the public perception that the Court is a mere political body.”).
- ↑ See Peck Testimony, supra note 91, at 5 (noting, and proposing reforms to address, “the level of partisanship and tribalism associated with Senate processes on Supreme Court nominations”); Wittes Testimony, supra note 91, at 1 (emphasizing “the decay of the confirmation process”); see also Presidential Commission on the Supreme Court of the United States 8:31:32–8:34:27 (July 20, 2021) (oral testimony of Randy E. Barnett, Georgetown University Law Center), https://www.whitehouse.gov/pcscotus/public-meetings/ (suggesting that the Senate’s repeated refusal to confirm a nominee could violate the spirit of the Constitution, given that “all discretionary power can be abused”).
- ↑ See Friedman, supra note 22, at 237–79 (2009); Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 Harv. L. Rev. 869, 900–16 (2011).
- ↑ See Presidential Commission on the Supreme Court of the United States 7–8 (June 30, 2021) (written testimony of Maya Sen, John F. Kennedy School of Government, Harvard University), https://www.whitehouse.gov/wp-content/uploads/2021/06/Sen-Written-Testimony.pdf (noting that “simply expanding the size of the Supreme Court is unpopular among the public” and citing polls showing that only 26% or 32% of Americans favor increasing the number of Justices).
- ↑ Critics who reject democracy-based arguments for Court expansion also note that Supreme Court Justices are selected by the President, with the advice and consent of the Senate, and the constitutional methods of selecting the President and the Senate do not guarantee that those bodies will reflect the popular will. The President is selected through the Electoral College, and on five occasions, a President has been elected without winning the popular vote. And the Senate is designed to provide equal representation to the states, not to reflect a broad national mandate. See U.S. Const. art. II, § 1, cl. 2–4, amended by U.S. Const. amend. XII. Electoral College Fast Facts, Hist., Art, & Archives, U.S. House of Representatives, https://history.house.gov/Institution/Electoral-College/Electoral-College/ (last visited Sept. 17, 2021) (“Five times a candidate has won the popular vote and lost the election. Andrew Jackson in 1824 (to John Quincy Adams); Samuel Tilden in 1876 (to Rutherford B. Hayes); Grover Cleveland in 1888 (to Benjamin Harrison); Al Gore in 2000 (to George W. Bush); Hillary Clinton in 2016 (to Donald J. Trump).”).
- ↑ Cf. The Federalist No. 78, at 392 (Alexander Hamilton) (Ian Shapiro ed., 2009) (“This independence of the judges is equally requisite to guard the [C]onstitution and the rights of individuals from the effects of those ill humors, which the arts of designing men … sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the
December 2021 | 105
