on Jul 13, 2022
at 5:01 pm
Though you would be forgiven for forgetting the Presidential Commission on the Supreme Court’s 294-page report published last December, it’s becoming harder to miss a wider conversation on the court’s ethics and transparency practices. On Tuesday, the R Street Institute, the free-market focused Washington think tank, held a lunch-time debate on court-reform proposals. Matt Germer, a resident elections fellow at R Street, was joined by Adam White of the American Enterprise Institute, journalist Sarah Isgur of The Dispatch, and Fix the Court founder Gabe Roth.
The event provided a brief overview of reform ideas, and their popular critiques. The group dismissed court expansion and started instead with Fix the Court’s proposed 18-year term limits. Under this proposal, each president would appoint two justices per term. But, Isgur responded, presidents might then run on their nominees to the bench. And, Germer added, “justices may game their retirement.” It is well-documented that those concerns both already occur.
“All the bad stuff is already happening,” Roth said. “I knew who Hillary Clinton’s nominees would be … I know who Cory Booker’s nominees would be.” “Things are only going to get worse,” he added, “so we may as well look to solutions now.” White, though by no means in agreement with Roth on all points, noted that the founders never imagined “as a medical reality” that justices could live 50 years beyond their nominations.
Isgur argued that imposing Supreme Court term limits would destabilize the court. “Chance will work the other way and at some point, there will be six Democratic nominees,” she said of concerns about the court’s 6-3 conservative majority.
From there the conversation turned to cameras in the courtroom. Isgur argued that “transparency has actually been kind of bad for our democracy. You want transparency in outcome … but transparency in process has actually turned out to be really corrosive.” She pointed to Congress as an example of how cameras can lead to political grandstanding.
Cameras, Isgur added, would turn the Supreme Court into something like the Amber Heard/Johnny Depp trial: “All these people on Twitter having feelings when they didn’t know the law.” Roth countered that the Supreme Court is not a trial court, the justices have no motive to produce sound clips for a congressional campaign, and each argument only lasts around an hour. In other words, the pageantry of a multi-week televised trial would not translate.
“The more exciting the Supreme Court gets, the more I get worried,” White said about the recent implementation of a live audio stream for oral arguments. But, Roth noted, excitement at the court is not necessarily tied to this new practice. “The justices have had a hot bench long before there was live audio,” he added, noting Justice Antonin Scalia’s famous rhetorical style. Command of the room, as always, he said, would fall to the chief.
One other topic of concern, White added, is the justices’ increased use, in recent years, of the shadow docket. By relying too heavily on emergency injunctions and by strategically taking or ignoring certain cert petitions, the court has strayed from duty, he said.
The final topic was ethics reform. Roth called this the most important and said that specific prohibitions must be put in place. Congress could at least say, “If your wife is fomenting a coup, don’t sit on any cases related to that coup. Basic, basic things,” he said. White argued that it was the role of the legal community, rather than Congress, to police the justices. Isgur, meanwhile, said that recusal requirements related to spouses would be unfairly limiting on the spouse.
The event ended promptly at 1 p.m., so that, Germer said, everyone could tune in for the seventh congressional hearing on the violent attempt last year to overturn a presidential election.