In April, President Joseph Biden established a Presidential Commission on the Supreme Court of the United States. 该委员会包括三名澳门赌场教员:实践教授和杰出驻校学者 Bob Bauer, who served as co-chair; Dean and Eric M. and Laurie B. Roth Professor of Law Trevor Morrison; and Sudler Family Professor of Constitutional Law Richard Pildes.
设立该委员会的行政命令要求该委员会分析“当代支持和反对最高法院改革的公共辩论中的主要论点”, including an appraisal of the merits and legality of particular reform proposals.” Among the proposals the commission considered were increasing the size of the court, term limits for justices, and limits on the Court’s power to declare legislative acts unconstitutional.
The commission voted to deliver its report to the president on December 7. We asked Bauer, Morrison, and Pildes about their experience as commission members and their views on issues it tackled.
The Washington Post recently reported “几乎没有迹象表明，拜登总统对改革最高法院的抵制有所软化.” Why do you believe he created the commission?
Bob Bauer: The president responded to an active, important national debate by committing to a comprehensive study by a bipartisan body of experts. Particularly in these times, when so much public discourse is deeply polarized, 在审议我国民主制度的重大体制改革建议时，特别需要这种方法. Nothing quite like this has ever been done: the report makes a singular contribution.
Trevor Morrison: From what he has said publicly, 显然总统认为最高法院改革问题很重要，值得仔细关注, 他的政府将受益于由不同的法律专家小组对各种改革建议的分析. I think the commission’s report does, in fact, make an extremely important contribution to the public discussions of those proposals, including the leading arguments for and against them and a consideration of their potential effects. Of course, 是否推行任何具体的改革方案都需要政治判断，最好留给拜登政府和国会.
What’s the most valuable thing the commission accomplished?
Bauer: I believe that, as reflected in the unanimous vote to submit the report to the president, the commission met its assigned charge, and did so admirably. 它对辩论作出了重大贡献，对最突出的改革建议所提出的法律和其他问题进行了深入分析. It does not recommend any specific reform, as this was outside that charge, but I confident that it will have a salutary impact on the debate—it illuminates challenges and pathways, and it does so clearly and with analytical rigor. I cannot say enough about the high quality of the commission’s work.
Richard Pildes: The commission report provides the most comprehensive, 详细分析了近年来讨论的对最高法院的许多最重要的潜在改革. These issues range from more narrowly focused ones, such as how the Court handles matters on its emergency docket, to some of the most significant institutional changes ever proposed for the Court, such as moving from life tenure for the Justices to a system of 18-year, 不可续任的任期——在总统任期内，每位总统都有机会提名两名大法官.
In many cases, 这份报告比以往任何分析都更深入地探讨了具体改革将如何实施的细节. 该报告还使人们对某些潜在改革的担忧浮出水面，这些改革以前在其他任何地方都没有提出过. 我认为，这份报告将成为今后大多数关于最高法院可能改革的讨论的标准起点, 特别是国会可能考虑采纳的改革，或者可能通过宪法修正案进行的改革. 不可能知道什么时候政治时刻才会开放，认真考虑任何具体的改革, but when it does, the report will be one of the first places to which any political discussion will turn.
The report notes the commission does not come to a conclusion about whether, in recent years, the Court “has suffered a loss or crisis of legitimacy.” What’s your personal view on that question?
Bauer: As a commission co-chair, I would prefer to allow the report to speak for itself on this and other issues in the debate. There are strongly held views about how to define and assess legitimacy, especially in evaluating potential reforms and their consequences, and the report includes a very good discussion of that topic.
In testimony submitted to the commission, Nan Aron, president of the progressive advocacy organization Alliance For Justice, 指责共和党人参与了对法院的党派接管，并将其描述为近年来对澳门最新网上赌场的民主和司法系统进行的更大规模攻击的一部分. In his testimony, Stanford Law School Professor Michael McConnell called for taking a longer view, pointing to increasingly bitter and partisan confirmation battles over the last 35 years, and cautioning the commission to “avoid the easy conclusion that it is the misbehavior of the other side, whichever that may be, that is the source of the problem.” Where do you come down on this?
Bauer: The portion of the report that addresses the genesis of the contemporary debate takes up this question, 该报告还包括一个附录，摘录了有关确认程序现状的宝贵证词, which was otherwise outside our charge. 对改革辩论这方面感兴趣的读者会在报告中发现许多有用和发人深省的内容. 再补充一点应该是无可争议的:对于谁应该为确认程序的糟糕状态负责，双方存在重大分歧, but few who will argue that it is in good shape.
Pildes: Some of the reforms the report addresses, such as expanding the size of the Court, are clearly motivated by events in just the past several years; the desirability of those reforms inevitably depends, in significant part, on political judgments such as the ones Nan Aron and Michael McConnell debate. Other reform proposals, though, such as term limits, long predate these more recent controversies and have attracted bipartisan and cross-ideological support.
Given the bipartisan membership of the commission, 谈话和讨论在多大程度上反映了美国政治辩论的高度两极化?
Bauer: What I observed on the commission was a genuine commitment to grappling with hard, controversial issues fairly, thoughtfully, and with respect for differing views. And, to the credit of all the commissioners, the report fulfills that commitment.
Pildes: I won’t comment on any of the internal deliberations that took place, but from the public hearings, it was obvious that there were a range of strongly held views, as there should be, given the significance of the issues the commission addressed. But the way in which the commissioners worked through these issues, in order to provide the president with an honest, fair, in-depth analysis of different reform proposals and the issues to take into account in assessing them, was heartening. Few commissioners likely agree with every statement in the report, 但委员们明白，协同工作的重要性，以产生一份委员们可以一致认可的报告，以符合总统向委员会提出的指控.
Morrison: I think it’s worth highlighting that, during our final public hearing, 一些委员对基本问题的是非直有很大分歧，他们赞扬委员们在处理这些问题和彼此之间进行合作和相互尊重的过程. 从这次经历中，我乐观地认为，真诚的人有能力克服深刻的分歧，在困难的问题上取得进展, important issues.
How did your own views evolve during your service on the commission? What did you learn?
Bauer: 我学到了很多东西——我非常感激有机会与博学多识的委员们一起工作, perspective and good judgment to these very difficult questions. I cannot think of a topic or issue we discussed, including a few I had been engaged with for years, that I did not find illuminated by these deliberations.
Pildes: 我学到最多的可能是关于将终身任期改为18年的宪法修正案的建议, non-renewable terms for the Justices. I had been aware of proposals to do that, which began to be made about 15 years ago. But I was not aware of how widespread the support for that reform was. The commission received testimony in support of that change from across the political and ideological spectrum; from those who consider themselves originalists and those who do not; from comparativists who provided perspective on how the constitutional courts of other countries structure their courts. Because the commission did not operate at the level of broad generality alone, 但也研究了具体的实际问题，关于实施各种建议可能意味着什么, such as term limits, I also learned a good deal about the complexity of some of these implementation questions. 因为限制任期的提案以前并没有受到如此密集的审议和分析, 我还了解到一些人对通过任期限制对最高法院意味着什么的担忧.
Morrison: Like Rick, I think I learned the most about the proposals in favor of term limits for the Justices. Some such proposals have been around for a number of years, 但通过澳门最新网上赌场收到的证词，我了解到支持这些想法的人比我想象的要广泛. There are some interesting ideas on how to implement this change through ordinary legislation, although I think I have become convinced that a constitutional amendment is the better route. One reason for this is that, in order for a system of staggered, limited terms to work, the Senate would need to act on each new nomination in a timely fashion. A constitutional amendment is probably necessary in order to create such a requirement.
How do you respond to those who hoped the final report, in its assessment of the merits of various reform proposals, would be more clearly supportive of reform?
Bauer: If these critics read the report carefully, they will see that it advances the reform debate: it will now be, I believe, a better-informed, richer discussion, and those who support reform, or those who oppose it, will find the commission report to be indispensable. And it is not an “either-or” proposition. There are reforms that some may oppose while supporting others.
Speaking individually, and not as a member of the commission, is there any Court reform you support, and why?
Bauer: I have favored term limits in concept for many years and, before the establishment of the commission, had written to express that view. The report comprehensively lays out the case for, and against, term limits, and makes a major contribution to the question of how such a reform would be implemented. I was struck, if not surprised, by the broad, bipartisan support for term limits in the public testimony to the commission. I still hold the view that this is a serious and responsible reform, and that the implementation issues, while complex, can be managed.
Posted December 16, 2021