Criticisms of Supreme Court Might Apply to Biden’s Commission Charged With Proposing Reform Report
Since President Joe Biden created a Commission on the Supreme Court this past April, you have wondered, “wha’ happened?”
Well, nothing much. This group of 36 big shot citizens — profs from elite schools, retired judges, a smattering of interest group people from liberal and conservative political viewpoints to make it look balanced — has gotten together and heard mostly from other big shots about what’s wrong with the nation’s highest court and how to fix things.
So far, the work of the commission has seemed like a conference of law school professors giving scholarly papers which someday soon will be turned into law review articles.
Left off the commission were ordinary practicing lawyers and the women and men who teach in law schools anywhere near where you live. In my years as a Creighton moot court coach, I got to know teachers from South Dakota to Drake to UMKC to Hamline and found them to be hard-working, very smart, practical folks who taught students to be ethical, clever lawyers.
Naturally, no professor from any of the 15 law colleges in the seven states of the Hick Belt was included. But, then, we don’t get many Supreme Court justices or even clerks, do we?
The presentations have been about such subjects as term limits for the justices. (A Harvard scholar suggests 18 years, with two members appointed per term, which would give presidents like Jimmy Carter a chance to do some appointing; he was closed out during his single four-year term).
Another Harvard fellow told the commission that the court is an anti-democratic institution whose problem is judicial review.
Of course, conlaw students have learned that judicial review is a creature of the justices and is nowhere to be found in the Constitution. Not only is judicial review a fiction, but it is embellished by the whole catechism of justiciability, whose first doctrine is “standing,” which keeps more litigants out of court than any other barrier to the notion of “one’s day in court.”
Another prof talked about the change in the unwritten norms about the confirmation process for justices which have politicized the judiciary in the public eye.
As you might imagine, the commission has heard grousing about the court’s “rewriting the Constitution” and suggestions for making it easier for Congress and the states to correct errors the justices commit.
The commission is not meant to be like a Congress made up of representatives from every state in proportion to the population. Too bad. People might pay a little more attention to what is being said if it were in plain English without a ton of footnotes.
The work is supposed to be completed by the end of the year.
However, there is no charge to come up with specific recommendations, or even a model code of ethics for the high court. My guess is that the final report will be put on a pallet and buried deep under the Library of Congress.
Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.
User login
Omaha Daily Record
The Daily Record
222 South 72nd Street, Suite 302
Omaha, Nebraska
68114
United States
Tele (402) 345-1303
Fax (402) 345-2351