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Session Summary: Restructuring, and Reforming the Federal Courts

Submitted by Corinna Lain

People who enjoy talking about federal court reform are an odd bunch. They can spend hours analyzing the ins and outs of reform proposals that will probably never see the light of day, and they seem to get excited about really depressing things. At least that’s the conclusion we came to at the end of our session. But what fun we had getting there. That’s what makes us an odd bunch.

Howard Wasserman (Florida International University) was our fearless leader, and he did an admirable job moderating us and keeping the conversation moving along. Although our panel was from 3:30-6:30 on Friday, we could have kept going for another 3 hours. That’s when you know you’re having fun—when three hours feels like one.

As usual, Howard managed to put together an eclectic group of people who were sure to make for great discussion. He paired us in twos, and paused after each set of presentations for discussion. In this brief summary, I try to capture the essence of each presenter’s ideas, and will just say for the record that after each pairing, lively discussion ensued.

Lori Ringhand (Georgia) and Eric Segall (Georgia State) kicked off our discussion group by viewing court reform in its larger perspective. Ringhand briefly summarized the history of Supreme Court reform proposals, showing that in every case, what happened was supported by constitutional provisions that firmly put the Supreme Court within the control of the representative branches. She discussed how the number of Supreme Court Justices has fluctuated over time, how the senate has both rejected and ignored presidential picks for Supreme Court Justices, and how jurisdiction-stripping measures under the exceptions clause are neither new nor outside the constitutional framework in which the Supreme Court operates. Realpolitik is part and parcel of the appointments process, she explained, and we can expect to see it impact how elected representatives interact with lifetime appointed Justices. In short, the Justices are not outside the political process, as many seem to believe; rather, they are embedded within it as a matter of constitutional design.

Eric Segall (Georgia State) began by first discussing how Hepburn v. Griswold, the 1870 legal tender case that effectively overruled McCollough, gave way to President Grant’s desire to appoint Justices who would overrule Hepburn, which became a litmus test for the next two appointments to the Supreme Court. Ideology, Segall explained, has played a role in appointments to the highest bench for well over a century. The question, he said, is what, if anything, to do about it. Segall then turned to two broad categories of reform proposals. In one category are proposals to improve transparency on the Court. Here, Segall talked about the Justices adding cameras in the courtroom, adopting an ethics code to regulate themselves, releasing their papers earlier, and getting rid of anonymous writs of certiorari. These, Segall says, are all non-partisan. In the other category are proposals to weaken the Court, and here Segall mentioned supermajority voting, packing the Court, jurisdiction-stripping, and ending life tenure. These, Segall noted, are not non-partisan and there are certain challenges that come with that. Ultimately, Segall concluded (with great personal regret and an appreciation for the deep irony) that the single best thing that progressives could do to weaken the Court is to give up Roe and Casey.  He also talked about his reform proposal to have 4-4 conservative-liberal split, which would effectively require each coalition to pull at least one vote from the other in order to overturn lower court rulings and legislative decrees.

Corinna Lain (Richmond) then began the second pair of presentations with a deeply depressing discussion about dark money in the judicial appointments process. She talked about the Federalist Society list of judges, which was “insourced” to the Trump white house. She noted that some of these judges (10) were deemed unqualified by the ABA, and discussed the work of Leonard Leo, who until recently was executive vice president of the Federalist Society and is still deeply involved in its work. Lain talked about massive spending campaigns to pressure senators to confirm justices, with payoffs to those who do, using as a prime example a six-figure campaign contribution from one of Leo’s non-profits to Susan Collins for being a “reasonable voice” after she cast a key vote to confirm Kavanaugh. She also talked about the Judicial Crisis Network and its massive spending, along with its intricate connections to the Federalist Society. In all, she noted around 2 dozen non-profit organizations that are essentially shells for identity laundering, with no employees and no on-line presence. They just take it money (several of which are 15-million-dollar or more single donor donations) and give it out. Lain noted that between 26-30 % of the federal appellate bench changed under the Trump Administration, and then talked about these non-profits filing cases that put issues before the courts, and then being joined by other non-profits, all of which are connected in some way to Leonard Leo. She then noted that in the course of Chief Justice Roberts’s tenure, there were 80 5-4 decisions, decided on pure conservative-liberal lines that benefitted identifiable republican donor interests, including Citizens United and Shelby County—decisions that make it harder for democracy to right itself. Lain ultimately argued for disclosure requirements as a minimal step in reigning in the dark money interests that have infiltrated our judicial appointments process. It was all fairly depressing.

Scott Dodson (Hastings) brought the mood up a bit with several straightforward tweaks to fix a fairly straightforward problem—the lack of transparency in Supreme Court rulemaking. First Dodson discussed internal rulemaking in the lower courts, the hallmarks of which were transparency and broad participation. By contrast, the Supreme Court’s internal rulemaking has no mechanism by which proposals are made public, and in the few occasions where the proposals are made public, they are sometimes open to comment, sometimes not, and the comments received are not made public. Dodson proposed a notice and comment period as a default rule, unless there is some good reason to except it. He argued that the comments received in the notice and comment period should be published, and also argued that the process of rulemaking itself should be made public so that stakeholders can more meaningfully participate. Finally, Dodson recommended that the Supreme Court periodically engage in a self-study of its own rules and rulemaking processes. Whereas people in the room responded with deep sighs while Lain spoke, they breathed a sigh of relief when Dodson ticked off his recommendations. Finally, an important problem with a doable solution.

The next set of speakers was Ilya Somin (George Mason) and Tom Metzloff (Duke). Somin focused his comments on two sets of proposals that have gained significant traction in the academy: court packing and term limits. Somin came out against court-packing, first noting that the senate sitting on nominees had been done before—the democrats did it at lower levels so, he argued, what happened with Merrick Garland was not an unprovoked aggression as others have claimed; rather it is something that both parties do. He also argued that limiting judicial review is bad for progressives because judicial review is often used to further progressive goals, and that packing the Court is what authoritarians do, and that even a conservative Supreme Court held the line against Trump in important ways, citing his election litigation. Somin viewed term limits, by contrast, as a good idea for several reasons. First, he pointed out that it would regularize the Supreme Court’s appointment process. Second, it would reduce the incentive to nominate very young, inexperienced judges so that they can be on the bench for an extended period of time. And third, he noted that people are living longer, surmising that it will become increasingly intolerable for lifetime tenure on the bench.

Tom Metzloff (Duke) followed by taking a practical look at what 18-year term limits for Supreme Court justices would look like. He discussed FDR’s first term, when frustration at having no picks after a landslide election led to his court reform proposal, and then noted the irony that in FDR’s second term, he had the fortune of nominating five (!!) Justices to the Supreme Court. Still, Metzloff used the example to illustrate the vagaries of luck in a president’s ability to nominate Justices to the Supreme Court. Metzloff then turned to a fascinating discussion of Justices who died in office, and how old they were, noting that before the twentieth century, 63% of Justices died in office (“this is where people went to die,” he observed to chuckles in the audience). That figure was lower in the twentieth century, but he was still able to point to a number of deaths of Justices on the Court who were quite old, as a reflection of life tenure (Rehnquist, Scalia, and Ginsburg are all prime examples, as all three were in their 80s when they passed). Metzloff closed the discussion by noting that for fans of these Justices, they were actually better, stronger, in their early years than in their later years—and for the Justices themselves, dying in office was a bitter part of their legacy, noting in particular that Ginsburg’s legacy now not only includes having her replacement chosen by the last person on Earth she’d want doing it—Trump—but substantively, also includes being replaced by the anti-RBG, Amy Coney Barrett.

Michael Dimino (Widener) and Linda Malone (William & Mary) were the last pairing of the discussion group. Dimino turned his attention to gaming senior status on lower courts. He started by bringing us all up to speed on the senior status provision, and then honed in on the problem with the provision—it provides that when a judge elects to go senior status (even if the judge continues working full-time, as is the judge’s option), it creates a vacancy on the court. This allows enterprising judges to create vacancies during administrations favorable to their own ideological views, even as they continue to work. Who knew?! Dimino pointed out that this state of affairs (a) is happening and has been happening, and (b) is not good for courts. It’s both unseemly and effectively increases the number of judges in a particular district or circuit. To combat this adverse incentive, Dimino argued that instead of creating the vacancy when a judge decides to take senior status, we should create the vacancy when the judge becomes eligible for senior status, effectively taking the issue out of their hands and preventing these “faux retirements” that are used to further their own political aims.

Linda Malone (William & Mary) brought our time to an end with a discussion of specialty courts, in particular focusing on the idea of an environmental court. She talked about other specialized courts here in the United States (tax courts, for example) and also specialized courts at the international level. One interesting thing about these courts’ work, she noted, is that not only is it highly competent because it is specialized and the judges who sit on it are specialists, but it is also not politicized. These courts do important work that flies under the radar because they are just doing their thing, and focusing on the intricacies of the issue and not politics. Malone noted that specialty courts aren’t the answer to all federal court woes, but argued that we could peel off important, complex issues, and at least get certain issues right. If we recognize the need for permanent specialized courts because the area of law is complicated and intricate, why not do the same for environmental courts, she asked. Malone considered the possibility of court capture by special interests, but noted courts’ resiliency in other areas. And then she closed our session by noting that none of our great proposals were likely to come to fruition, and the whole thing was fascinating but also pretty depressing.

On that note, we decided to break and go get a drink. By then, we all might have needed one.