Presidential Commission on the Supreme Court of the United States
- voting rules and the standards of review it uses when considering whether to invalidate the actions of elected officials. Finally, it includes proposals to allow Congress to override constitutional decisions of the Supreme Court and other courts. We analyze this category of proposals in Chapter 4.
- Transparency and the Court’s internal processes. A final category of potential reforms includes proposals that would address internal operations of the Court. These proposals concern: the procedures and principles the Court applies to emergency applications; judicial ethics and transparency with respect to recusals and conflicts; and making the Court’s proceedings widely accessible in real time through audio or video transmission. We take up this set of reforms in Chapter 5.
With regard to each of the four categories of Court reform, we consider relevant historical background (in addition to the more general historical background provided in Chapter 1); we evaluate the case for and against the reform as framed by proponents and critics; we explore whether the proposed reforms promote the goals of their proponents and what the potential consequences of the reforms might be; and we consider the legal requirements and obstacles that must be met or overcome to implement the reforms.
We do not analyze at length the confirmation process or proposals for how the Senate might reform it. The Commission recognizes that the processes by which individuals are nominated to the Court by the President and considered by the Senate are central to today’s debate. However, the Commission’s charge was to address proposals for reforming the Court itself, not for reforming the confirmation process. At the same time, given the extensive and bipartisan testimony we received concerning the intense conflict that now characterizes that process, generating widespread concern that it has become dysfunctional, we have attached an Appendix to this Report that discusses specific reform proposals presented to the Commission—proposals we believe merit close attention and consideration.[42]
B. Evaluating Reform Proposals
Before proceeding to analyze particular reform proposals in subsequent Chapters, we consider the values and principles that might be brought to bear in evaluating whether reform is needed and whether a particular reform might be worth pursuing or could be counterproductive. Three common and interrelated themes are frequently invoked in discussions about reform: the perceived need to protect, or enhance, the Court’s legitimacy; concerns about preserving the independence of the federal judiciary and the Supreme Court in particular; and the Court’s relationship to democracy. One challenge in defining these concepts
December 2021 | 21
