Testimony Before the Presidential Commission on the Supreme Court of the United States

Abstract

I have been asked to testify about “the Court’s role in our constitutional system,” in particular its role in resolving “major social and political issues” and proposals for reforms affecting judicial review of legislative enactments such as jurisdiction stripping, supermajority voting requirements, or congressional overrides. Recognizing that this Commission already comprises leading experts on these subjects, I will limit my comments to three discrete points that the Commission might find useful in its deliberations. I will discuss (1) the importance of different methods of constitutional interpretation to the Court’s role in our society, (2) the concept of “departmentalism,” which already exists, or can exist, within our present constitutional system, and by which the importance of the Supreme Court might be diminished, and (3) a proposal for eighteen-year, staggered term limits for Justices. The upshot of my remarks is that the current Supreme Court, if it were to follow a genuinely “originalist” approach to constitutional interpretation, is not in need of reform because on many controversial social and political questions the Constitution leaves the answers to the democratic process, and on other questions an originalist approach does not reliably lead to results that only one political party favors. Recognizing, however, that originalism might nevertheless be controversial, I suggest reinvigorating the concept of departmentalism in our political and constitutional culture. Departmentalism recognizes that the Supreme Court has the final say on interpretations of law in cases and controversies that come before it, and that its judgments in such cases are binding on the parties. The political branches need not follow the Supreme Court’s reasoning as a political rule, however, at least not until good faith requires accepting that a constitutional question has been fully settled. (And a single Supreme Court opinion does not, or ought not, settle all such questions.) Neither the argument on originalism nor departmentalism requires any affirmative action on the part of this Commission. To the extent these proposals are not satisfying, however, I also explore the possibility of imposing eighteen-year, staggered term limits on Supreme Court Justices. The National Constitution Center recently commissioned three teams — progressive, libertarian, and conservative — to draft new Constitutions for the United States. Team conservative, which I led, proposed eighteen-year, staggered term limits, as did the progressive team. Libertarian scholars have also endorsed this idea. In other words, eighteen-year, staggered term limits are a potential reform that persons of all backgrounds and political persuasions might support. The proposal would likely require a constitutional amendment, and it is hardly a perfect solution; indeed, in my view it is an unnecessary one. But it is probably the most plausible and politically achievable reform.