Closing Refections on the Supreme Court and Constitutional Governance: Testimony Before the Presidential Commission on the Supreme Court of the United States

16 Pages Posted: 22 Jul 2021

Date Written: July 20, 2021

Abstract

In considering potential reforms, the Commission should take care to do the following:

* Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today.

* Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture.

* Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include:

** measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms;
** measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping;
** measures that would be lawful but unwise, such as cameras in the Court.

The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed).

There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.

Keywords: Supreme Court, Presidential Commission, court-packing, jurisdiction-stripping, 18-year terms, supermajority voting, cameras in the Court

JEL Classification: K4,K40,K41

Suggested Citation

Sachs, Stephen E., Closing Refections on the Supreme Court and Constitutional Governance: Testimony Before the Presidential Commission on the Supreme Court of the United States (July 20, 2021). Available at SSRN: https://ssrn.com/abstract=3889558 or http://dx.doi.org/10.2139/ssrn.3889558

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11417/Sachs

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