Faculty Focus: Russell Miller on Supreme Court Reform Rather than solve a crisis of integrity, Professor Miller argues that expansion of the number of justice or more frequent appointments resulting from term limits will destabilize the Court’s jurisprudence.

By Law Communications
October 4, 2024

On the heels of several precedent shattering decisions from the U.S. Supreme Court and following a season of highly contentious appointments to the Court, the issue of reforming the country’s high court has become a topic in the 2024 presidential election. At the start of his term, President Biden convened an advisory commission on the Supreme Court. And, just days before stepping aside as the Democratic candidate for the 2024 election, President Biden endorsed a slate of proposed reforms, including term limits and an enforceable code of ethics. While many feel the future of democracy is at stake in the current political cycle, perhaps it is not surprising that calls for Court reform are a part of a national debate on the role of the Court in our system and the prospects for its integrity and legitimacy.

Of course, scrutiny of the high court is nothing new. Almost forty years ago, W&L Law emeritus professor Lash LaRue wrote the following in a “Washington Post” editorial arguing for term limits: “Given the age of those who sit on the court, the man who wins the election is likely to make an unusually large number of appointments. And so it is said that the next election is crucial. These political experts are surely right about thing: a different set of judges will mean a different interpretation of the Constitution.”

For Russell Miller, the J.B. Stombock Professor of Law at W&L Law, it is just that nexus between judicial appointments and perceived partisan outcomes in the Court’s cases that informs his cautious, institutionalist posture towards calls for reform of the Supreme Court. Professor Miller has written extensively about the subject, appearing in the “New York Times” and on NPR to discuss his reservations about the reform agenda. His recent article “The Purpose and Practice of Precedent” in the UC Law Constitutional Quarterly examines how recent cases involving the doctrine of stare decisis—adherence to past decisions—anticipated the U.S. Supreme Court’s Dobbs decision, which overturned Roe v Wade. Rather than solve a crisis of integrity, Professor Miller argues that expansion of the number of justice or more frequent appointments resulting from term limits will destabilize the Court’s jurisprudence. “After all, the rash of surprising reversals of precedent at the Court was triggered by a rush of new appointments to the Court in the last 10 years,” says Miller.

In the Q&A below, Professor Miller offers further perspective on the calls to reform the Supreme Court.

Q: Do you believe the Supreme Court is facing a crisis?

I don’t believe there’s a crisis at the Court, aside from reformers being frustrated with the outcomes of recent major cases. While I share some of their discontent with those results, that perspective alone cannot justify institutional change. Instituting reforms based on dissatisfaction with decisions is simply partisan medicine for a perceived partisan crisis. There is no structural breakdown or dysfunction at the Court, which is functioning well. It continues to decide cases and isn’t struggling with a crippling backlog. Even the sense that the Court has descended into blind partisanship can’t be supported. It still decides more than 50 percent of its cases by 7-2 (or higher) votes. Unanimous decisions remain, by far, the most frequent voting constellation at the Court. Only 20 of the Court’s decisions were decided by a 6-3 margin, and only half of those cases involved the six “conservative” justices voting as a block.

Q: Why is public confidence in the Court declining?

The Supreme Court is intentionally designed as a counter-majoritarian institution—it’s supposed to make unpopular decisions and has been celebrated for doing so in the past. But even if there is partisanship at the Court, blame is shared across the political spectrum. Democrats revoked the filibuster for lower court judicial appointments under George W. Bush. Republicans followed by removing it for Supreme Court nominations. Both parties have resorted to extreme tactics in the appointments process, and the media often does a poor job of accurately reporting on the Court’s rulings. Calls for reform now should remind us of the reaction to FDR’s universally criticized court-packing plan in the 1930s. Reformers today weren’t calling for these changes when the Court’s decisions aligned more closely with their policy goals a generation ago. It’s largely a reaction to a recent string of decisions viewed as favoring one party.

Q: How does the U.S. Supreme Court differ from other courts around the world and what can we learn from global examples of judicial reform?

There are a lot of comparative law references in this debate. Those calling for reform of the Supreme Court note that our grant of life-tenure to the justices, for example, is unique in the world. But there are good reasons why the U.S. differs on this point. Most courts around the world approach the law in a much more mechanistic or mathematical manner. Few operate on the basis of thoroughgoing legal realism with extensive judicial power that characterizes the U.S. legal culture. In that sense, the outcomes in cases at courts around the world aren’t nearly as dependent on who is serving as a justice on those courts. At the same time, my work in Europe has made me aware that “reform” of judicial institutions is part of the playbook being used by autocrats and strong-man thugs around the world.  One of the first thing autocrats have done in places like Hungary and Poland is try to capture the courts for their purposes. Troublingly, the “reforms” used in those places involved the same devices:  term limits, judicial purges, and ethics or disciplinary supervision. That record should give us pause when talking about tinkering with our Court.

More Analysis from Professor Miller

Articles

• “The Purpose and Practice of Precedent,” UC Law Constitutional Quarterly (2024)
• “Dobbs and the New Doctrine of Stare Decisis,” William & Mary Bill of Rights Journal (Forthcoming)

Media

• “Does the Supreme Court Need More Justices?” New York Times
• “How The Supreme Court May Threaten Democracy,” CNBC
• “What reforms would restore America’s trust in the Supreme Court?” NPR
• “We Don’t Need to Reform the Supreme Court,” Just Security
• “The American Supreme Court in Crises?” Konrad-Adenauer-Stiftung
• “The U.S. Supreme Court and the German Federal Constitutional Court: Do They Serve as Models or Are They in Need of Reform?” American Council On Germany

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