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U.S. Supreme Court Advocates Hesitant to Force Change on Justices

A group of Supreme Court practitioners urged the presidential commission considering changes to the makeup and practice of the high court to defer to the justices on questions of changing its operations or procedures.

Having collectively argued more than 400 cases before the justices and headed by Mayer Brown’s Kenneth Geller and Latham & Watkins’ Maureen Mahoney, the group signaled opposition to the sort of dramatic changes sought by progressives. Although, a majority of the panel did agree that a constitutional amendment to impose term limits is worth thinking about.

The advocates “are firmly united in our respect for the Supreme Court and our belief that it is one of the true treasures of our government,” the group said in written testimony prepared for the commission’s next public hearing on Tuesday.

As such, they argue that questions around changing the inner workings of the court should be left to the justices, not forced on them by Congress or the executive branch.

“Not only is the Court in the best position to evaluate the potential positive and negative effects of the proposals, but the separation of powers and respect for coordinate branches counsels strongly in favor of allowing the Court itself to determine whether and what changes would be salutary,” the group said.

Progressive critics of the commission appointed by President Joe Biden say its dominated by academics and lawyers who are unlikely to find fault with an institution before which they practice, and leaves out marginalized groups that are most affected by the Supreme Court’s decisions.

Captial Sentences

The most widely reported changes the commission is studying are plans to add justices or limit their life tenure.

But the practitioners report focuses on more modest procedural changes, including “jurisdiction stripping,” creating a panel for selecting Supreme Court cases, and detailed rules for appointing attorneys to argue cases as an amicus.

On the whole, the practitioners said they think few changes would be beneficial for the court and its public perception, and say those changes should be initiated by the court itself, not outside players.

One such issue involves a heightened standard for undoing a lower court stay of execution. Currently, five justices can undo them, often with expedited briefing and little to no analysis provided by the court.

In January, the justices cleared the way for Lisa Montgomery—the first women to be executed by the federal government in decades—to be put to death over the objection of at least three justices. Because justices are not required to disclose their votes on such matters, it is unclear who provided the fifth one necessary to vacate the stay. Moreover, the justices did not explain the basis for their decision.

“Given the profound consequence of legal error in capital cases, these members believe that a stay of execution should be afforded greater deference by the Supreme Court and other federal appellate courts,” the practitioners said.

But even then, the group said in the report that the justices should implement any rule.

The group also urged the justices to continue to livestream oral arguments, something they did for the first time during the pandemic.

Other Changes

But the group said it would be unwise for other changes to the so-called shadow docket, which typically includes emergency requests like the death penalty stays.

The practitioners urged the commission to reject calls to require oral arguments in those emergency cases, require a written explanation for their decisions, and mandate a more deferential standard in non-capital cases.

Such changes “may hamper quick relief in urgent situations, without producing measurable benefits in most cases,” they said.

The group also rejected changes aimed at getting more cases in front of the justices. During the 1980s, the court routinely heard upward of 150 per term. Over the past several terms, that number has been closer to 65.

Proposals to set standards for when the justices must accept a case, create a panel of judges to decide which cases the justices will hear, or create a “lottery docket” of randomly selected cases were all rejected.

“Practitioners love to debate whether the Court’s docket is too small, too big, or just right,” they said. “But the Court is best situated, exercising its longstanding certiorari criteria and the discretionary jurisdiction granted by Congress, to determine which cases, and how many, to hear each Term.”

The practitioners also rejected more modest proposals such as establishing standards for the selection of attorneys to argue in favor of the ruling below when the parties refuse to do so.

The Supreme Court does so only a handful of times, but the selections have garnered condemnation for their lack of gender and racial diversity. “Of the approximately 70 amicus counsel appointments to date, it appears that only seven advocates have been women and only four have been people of color,” the practitioners note.

Nevertheless, they don’t support “prescribing a public standard for appointments.”

Other proposal rejected by the group include calls to form a federal advocate for criminal defendants that mirrors the work of the Solicitor General’s Office, the creation of an ethics code for the justices, and calls to forbid them from owning stock holdings.

“Given the sacrifices already required from public servants,” forbidding stock holdings and the like “are insufficiently justified either to increase public confidence in the Court or to reduce a handful of occasional recusals.”

The other advocates on the Supreme Court Practitioners’ Committee are Beth Brinkmann, David Burman, Kelsi Brown Corkran, Michael Dreeben, Miguel A. Estrada, Jeffrey Fisher, Gregory G. Garre, Deepak Gupta, Caitlin Halligan, Peter Keisler, Joshua Matz, Michael McConnell, Virginia Seitz, and Donald Verrilli.