In the waning days of the presidential campaign last year, Joe Biden appeared on the CBS News program 60 Minutes and responded to a question about expanding the number of justices on the U.S. Supreme Court. Biden said that, if elected, he would establish a “bipartisan commission of… constitutional scholars” that would produce “recommendations as to how to reform the court system.” That commission, which according to recent reporting is set to launch soon, has the potential to help restore legitimacy to an institution whose abuse by Republican politicians in the Trump years caused a serious undermining of public confidence in the Court.
No one can forget the stonewalling of Judge Merrick Garland’s nomination to replace Justice Antonin Scalia, with nearly a year left in President Obama’s term; the intensely controversial confirmation of Justice Brett Kavanaugh amid allegations of sexual assault; or the confirmation of Justice Amy Coney Barrett just days before the 2020 election ended — an appalling hypocrisy from Republicans who took the opposite position about timing during the Garland nomination four years earlier. These and other Trump-era abuses have jeopardized the integrity of the High Court by staining it with extreme partisan politics.
The work of Biden’s commission, therefore, is critically important, and Congress will be expected to take up the commission’s recommendations in coming months. Issues of Supreme Court legitimacy and expansion, however, should not end the discussion. There are other — often overlooked — issues in our judiciary that demand Congress’s attention as well.
Consider, for example, the lower federal courts. District courts and circuit courts of appeal play an incredibly powerful role in our society. Many Americans may not realize that for the vast majority of federal court litigants, these lower courts will have the final say in their disputes. That means for federal claims regarding consumer protection, worker safety, employment discrimination, environmental protection, police violence, and myriad other issues, the lower courts will be the last word. The Supreme Court, by contrast, hears only about 0.02 percent of the cases filed in our federal courts annually, or roughly just 75 out of 375,000 cases.
Yet Congress has not provided a significant increase of lower-court federal judgeships since 1990, even as our nation’s population has grown and the demands placed on our judicial system have increased. The Judicial Conference of the United States — established by statute as the official, nonpartisan, policy-making body of the federal courts — assesses judicial workload. In March 2019, the body recommended creating five new permanent appellate judgeships, 65 new permanent district court judgeships, and converting eight district court judgeships from temporary to permanent status. In fact, the Judicial Conference’s recommendation likely understates the actual need.
Senate Majority Leader Chuck Schumer (D-N.Y.) discussed expanding the lower courts in a recent interview. Sen. John Cornyn (R-Texas) recently told The Hill, “My state’s a big, growing state, and we’ve got huge caseloads … I’d be open to having a conversation about that.” This basic and noncontroversial work is critical and should be high on Congress’s 2021 to-do list.
Another area of concern is the issue of Supreme Court ethics. While the elected branches — Congress and the presidency — are held to account by voters every few years, federal judges have lifetime appointments. And while lower court judges are governed by a code of ethical conduct, Supreme Court justices are not. That leaves justices to keep their own counsel in deciding whether to recuse themselves from a case where they might have a conflict of interest. At the same time, disclosure rules are not strong enough to identify every potential conflict of interest that might exist for a justice. Taken together, these problems make the Supreme Court the least accountable institution within our three branches of government, detracting from its image as a fair and neutral arbiter. Congress should examine ways to bring clarity and transparency to the ethical standards governing Supreme Court justices and build the confidence of the American people in the ethical rigor of the High Court.
Finally, an issue that few pay attention to, beyond close observers of the Supreme Court, is called the “shadow docket.” The Court regularly hands down orders without the benefit of briefing or oral argument, and often without any explanation for their decisions, or even how the justices voted. Were these so-called procedural orders not, in fact, so substantive, this aspect of the Court’s practice might escape notice entirely. Yet for issues spanning voting rights to the death penalty, such orders can be incredibly consequential, even “rewriting the rules of our democracy,” but with virtually no transparency or accountability. Congress should investigate the Court’s shadow docket and recommend ways it can be brought into the light.
To be sure, whether to expand the Supreme Court is a prominent question — and deservedly so —but there is more to improving the third branch of government than that issue. In a packed legislative calendar, policymakers and advocates must not forget issues of ethics and the administration of justice that, while critically important to everyday Americans, all too often go overlooked.
Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. She previously served as clerk at the U.S. Court of Appeals for the Ninth Circuit, Follow her on Twitter @ElizabethWydra.