I have been reading and reflecting on the report of the Presidential Commission on the Supreme Court of the United States, issued December 7th. My initial criticism is that the report's version of the history of the 1937 court-packing crisis both jejune and not up to date in its sources. For instance, it omits to cite the fulcrum article, Judge Glock, "Unpacking the Supreme Court: Judicial Retirement, Judicial Independence, and the Road to the 1937 Court Battle, 106 J. AMER.
HIST. 47 (2019), as well as my own offering, “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis, 54 UIC J. MARSHALL L. REV.. 379 (2021) [available here: https://repository.law.uic.edu/lawreview/vol54/iss2/1/]
To begin, the report considers all possibilities for reforms to address the dissatisfaction with the Court that motivated President Biden to create the SCOTUS Commission, including proposals to enlarge the Court and other structural reforms to the Court, such rotation of personnel between the Court and the lower federal courts and division of the Court into panels. Other measures to ensure ideological balance include "jurisdiction stripping; supermajority voting requirements for the invalidation of congressional or other government action, as well as other rules that would require courts to show greater deference to the political branches; and proposals for a constitutional amendment to authorize Congress, through legislation, to override decisions of the Supreme Court and other courts."
The report does not endorse any particular course but comes closest to recommending Prof. Akhil Reed’s proposal—which has drawn bipartisan support—for "non-renewable term limits” to "help ensure that the Court’s membership is broadly responsive to the outcome of elections over time; make appointments to the Court more predictable and less arbitrary; reduce the chances that excess power might be concentrated in any single Justice for extended periods of time; and enhance the Court’s decisionmaking by ensuring regular rotation in decisionmakers, while maintaining judicial independence by guaranteeing long terms and lifetime salaries.” I like that idea.
The report discusses whether a constitutional amendment would be required. I believe not. After all, Article III, Section 1 of the Constitution simply provides:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
The only court mentioned there is the Supreme Court; and it has always been up to Congress to designate how many seats there are on it as well as to create and staff the lower federal courts. Moreover, jurisdiction of the Court and the lower courts is obviously the stuff of statutes adopted—and changed--by Congress from time to time.
As for lifetime tenure, the second sentence of Section 1 has always been shorthanded as “lifetime,” but what it actually says is “hold their Offices during good Behaviour” and “receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The imperative is phrased as “Continuance in Office” and “during good Behaviour,” not “until they shall have died.”
I am writing the biography of Congressman Hatton Sumners (1875-1962) of Dallas who served as House Judiciary Committee chair from 1930-1947. Pertinently, he is the author if the 1937 Retirement Act that enables SCOTUS justices to retire instead of either dying in office or resigning. In retirement they retain their full SCOTUS salaries for life and have “senior status” or the ability to sit in the lower federal courts if and when they wish. If justices can opt to retire, they can choose to accept a term of years, either when they are appointed or during their service. I therefore believe that a constitutional amendment for term limits is not necessary. Consent should be adequate.
Sumners had the informative experience of prosecuting Articles of Impeachment against four corrupt federal district judges, and he investigated a number more. He always considered “good Behaviour” to be a justiciable issue. From 1938 to 1943 he proposed statutes to make federal judges removable from office for breaches of that rubric by, instead of a trial in the Senate, a trial before a special court comprising three appellate judges--and that statute failed by only three votes in the Senate in 1943!
I do salute the commissioners for fulfilling the President’s mandate to fully evaliuate the situation of the Supreme Court and consider all alternatives. All lawyers and all other professional and thinking persons who care about our nation and its future owe it to themselves to read the report, which is quite accessible and readable and is available here: www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf
-Josiah Daniel
As for lifetime tenure, the second sentence of Section 1 has always been shorthanded as “lifetime,” but what it actually says is “hold their Offices during good Behaviour” and “receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The imperative is phrased as “Continuance in Office” and “during good Behaviour,” not “until they shall have died.”
I am writing the biography of Congressman Hatton Sumners (1875-1962) of Dallas who served as House Judiciary Committee chair from 1930-1947. Pertinently, he is the author if the 1937 Retirement Act that enables SCOTUS justices to retire instead of either dying in office or resigning. In retirement they retain their full SCOTUS salaries for life and have “senior status” or the ability to sit in the lower federal courts if and when they wish. If justices can opt to retire, they can choose to accept a term of years, either when they are appointed or during their service. I therefore believe that a constitutional amendment for term limits is not necessary. Consent should be adequate.
Sumners had the informative experience of prosecuting Articles of Impeachment against four corrupt federal district judges, and he investigated a number more. He always considered “good Behaviour” to be a justiciable issue. From 1938 to 1943 he proposed statutes to make federal judges removable from office for breaches of that rubric by, instead of a trial in the Senate, a trial before a special court comprising three appellate judges--and that statute failed by only three votes in the Senate in 1943!
I do salute the commissioners for fulfilling the President’s mandate to fully evaliuate the situation of the Supreme Court and consider all alternatives. All lawyers and all other professional and thinking persons who care about our nation and its future owe it to themselves to read the report, which is quite accessible and readable and is available here: www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf
-Josiah Daniel
