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Professor-Heavy SCOTUS Commission Leaves Out ‘Real-Life’ People

July 20, 2021, 2:35 PM

The presidential commission exploring potential changes to the U.S. Supreme Court’s composition and functions is coming under fire for its own membership and who it’s hearing from as witnesses.

The 36-member commission, which is holding its second public hearing Tuesday, is composed largely of professors from elite law schools and has relied on witnesses from similar institutions.

Including its first two hearings, 57 of 82 committee members and witnesses are professors, of whom 36 teach at one of six schools: Harvard, Yale, Duke, the University of Chicago, Columbia, and NYU.

“If you look at both the commission itself and the folks who have been invited to testify in front of the commission, it doesn’t look like the people who are impacted by our courts, it doesn’t look like the American public,” said Molly Coleman, executive director of the People’s Parity Project, a progressive advocacy group that seeks “unrig” a legal system it says cares more about corporations than average Americans. “It looks like an academic conference at Yale Law School.”

The commission and its witness lists have also included relatively few women and attorneys of color, Coleman said. Though the White House doesn’t list the race and ethnicity of the members of the panel, women make up about third of the commissioners and panelists.

“It just goes to show that this commission is an academic exercise and not the urgent conversation about reform that is needed,” Coleman said.

Notably underrepresented are groups advocating on behalf of criminal defendants whose cases make up a large portion of the Supreme Court caseload, said Easha Anand, a Supreme Court and appellate counsel at the the criminal justice group MacArthur Justice Center.

“We seem to be missing a pretty big part of the story,” Anand said.

The White House declined to comment and the co-chairs of the commission, Cristina Rodriguez and Bob Bauer, didn’t respond to a request for comment.

The commission, tasked with exploring options like adding seats to the nine-member court or eliminating life tenure, is set to issue an analysis of the proposals to the president in mid-November.

Not considering interests of criminal defendants and others most affected by Supreme Court rulings means those recommendations are unlikely to convey the urgency of needed changes to the Supreme Court, said Sarah Lipton-Lubet, executive director of Take Back the Court, a group urging court expansion.

“We don’t have months to wait on an academic exercise when real lives are at stake,” Lipton-Lubet said.

At the Tuesday hearing, interim president of The Leadership Conference on Civil and Human Rights Wade Henderson, who was appearing as a witness made similar comments about the academic nature of the discussions.

“We urge you to engage and center historically marginalized people who are most impacted by the Supreme Court and to focus on strengthening our democracy,” Henderson said in his testimony.

Academics, D.C.-Elites

President Joe Biden issued an executive order on April 9 to establish the commission in response to calls from the left to add seats to the Supreme Court in the wake of President Donald Trump’s three additions that created a 6-3 conservative majority.

Republican senators’ refusal to hold confirmation hearings for President Barack Obama’s nominee, Merrick Garland, and a lightning-fast confirmation just weeks before the 2020 presidential election also bolstered progressive calls to pack the court.

The order asked the commission to look broadly at the role of the Supreme Court in modern society, historical criticisms of the court’s function, and “the contemporary public debate for and against Supreme Court reform.”

“At the very least we should expect that this commission and the folks who are testifying in front of it are close to representative of the public as a whole, and it’s just nowhere near there,” Coleman said.

Besides criminal defendants, Lipton-Lubet said it’s also important to hear the voices of recipients of the Deferred Action for Childhood Arrivals program , women, members of the LGBTQ community, Indigenous and Black voters, and farm workers, said Lipton-Lubet.

Elsewhere, the Biden administration has made it a point to increase diversity. In his federal judicial nominations, Biden has prioritized nominees who bring diversity to their respective courts in terms of gender, race and ethnicity, and professional background.

Transformative Witnesses

The commission has tried to make up for its lack of professional diversity “in terms of who they’ve heard from at public meetings,” Anand said.

She pointed to experienced advocates like Christina Swarns from the Innocence Project, who testified at the commission’s June 30 meeting.

Among commissioners currently serving as professors are three who previously sat on the federal bench as judges: Thomas Griffith (D.C. Circuit), David Levi (E.D. Cal.), and Nancy Gertner (D. Mass.). The commission also includes Sherrilyn Ifill of the NAACP Legal Defense & Educational Fund, and Supreme Court practitioners Walter Dellinger, David Strauss, and Larry Tribe.

At the Tuesday meeting the commission will hear from Sharon McGowan, the chief strategy officer and legal director for LGBTQ legal advocacy group Lambda Legal; Margaret Marshall, the first female chief justice of Massachusetts; and Craig Becker, the AFL-CIO’s top lawyer.

Coleman agreed that some people have given “transformative testimony,” and that there have been some powerful comments from leading voices on overhauling the Supreme Court.

At the June 30 meeting, assistant Harvard Law professor Nikolas Bowie was praised by progressives for his testimony, especially his candid framing of the relationship between law professors and judges.

“Asking lawyers and law professors to testify about reforming the Supreme Court is like asking a worker to testify about whether their boss is doing a good job,” Bowie said during the meeting.

Good Faith

The need for additional perspectives on the commission isn’t “a slight on the commissioners themselves,” Anand said.

“We often forget that the Supreme Court also matters to a lot of other people, whether they’re criminal defendants, litigants, or classes of people whose life courses are shaped by the Court’s rulings,” she said.

There will be more people bringing these perspectives at Tuesday’s meeting, Lipton-Lubet said.

“The emphasis, though, on academic approach to this urgent problem still feels overwhelming,” said Lipton-Lubet.

To contact the reporters on this story: Tiana Headley at theadley@bloombergindustry.com; Madison Alder in Washington at malder@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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