A month before the 2020 presidential election, the Supreme Court was front and center. Justice Ginsburg had just died, paving the way for the Republican Senate majority to confirm her replacement—Amy Coney Barrett—a jurist backed by conservative interest groups. Barrett’s hasty confirmation was a turnabout by those same senators, who, four years earlier, had blocked President Obama’s selection to fill Justice Scalia’s seat, asserting that Supreme Court vacancies should not be filled in the months before a presidential election.
Those who worried about a solid conservative majority and about the senatorial engineering that produced it wondered what Joe Biden would do with the Court if he were president. Would he try to pack it to add more balance? Something else? Nothing? Biden had no easy answers. Whatever he might have said would surely alienate some voters. So he punted. He would create a nonpartisan commission to study the Court and make recommendations.
Biden’s Presidential Commission on the Supreme Court had an expansive charge: to examine “the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.” Unsurprisingly, the commissioners offered many ideas but had no consensus recommendations.
In the four years since, the Court has handed down some of the most stirring—some would say among the most controversial and regressive—decisions in at least the last 75 years. On top of that, serious questions have surfaced about possible ethics lapses from unusual relationships between some justices or their spouses and third parties who have interests seemingly linked to matters before the Court.
These developments make it worthwhile to visit two issues that may have prompted Biden to create the commission: Should something be done about the Supreme Court’s composition? And can we make justices more accountable?
Those two questions are opposite sides of the same coin in that they grow out of the same problem. Justice Kagan described it succinctly in her dissent from the shadow docket order in South Bay United Pentecostal Church v. Newsom: “Our life tenure forever insulates us from responsibility for our errors.”
The logic of Justice Kagan’s observation is unassailable. Imagine two types of justices. Justice A is excellent in all respects: beholden to constitutional norms and well-established legal principles; fair and impartial; committed to justice and the rule of law, with a healthy but non-dogmatic respect for precedent; intellectually honest; scrupulously ethical. Justice A is also deeply empathic, sensitive to the effects of the Court’s decisions on the social order and on individuals who could be harmed.
Justice B is less than excellent in all respects. Justice B may have biases that tend toward first identifying the desired outcome and then inventing legal rationales to support it. Perhaps Justice B’s legal reasoning misaligns with precedent, appears illogical when applied to analogous situations, or seems designed to implement a controversial agenda. It could conflict with earlier positions the justice had taken to achieve different outcomes in other cases, or it might not account for the harshness of some of its applications. And Justice B’s ethical compass is only sometimes reliable.
While little harm comes from Justice A’s life tenure, not so for Justice B’s. And if the Court has more B justices than A justices, then life tenure produces a great deal of harm.
Can the system be improved to screen out B justices before they are appointed? And should it have some sort of safety valve or accountability apparatus for when an appointee, thought to be an A justice, later proves to be a B?
Justices today are appointed by the president but only with senatorial blessing. The process presumes a high level of investigation and critical assessment. But whether it screens out B justices depends entirely on the good faith, diligence, and standards the president and senators apply. A president determined to serve some political agenda by appointing a B justice will succeed if the confirming senators go along.
Why did the framers propose that system if it could be so easily compromised by the political whims of presidents and senators? Perhaps because, even so, it was an improvement over the English system, in which judges were selected by just the king. Perhaps they expected presidents and senators to bring better judgment and more responsibility to the task. Perhaps they did not foresee how powerful the Supreme Court would become.
Whatever the reason, history teaches us that the constitutional appointment system is fallible. It leads to appointments driven by political considerations. While we can say that the appointments derive from a representative democracy, that comes with a heavy price: We can get justices who largely implement the partisan political goals and social preferences of the appointing president and the Senate’s majority party, which, depending on what they are, could be bad.
If, with the benefit of experience and hindsight, the framers could redo it, would they design a more effective appointment system? Do other models work better?
What if most of the work in selecting new justices were reassigned from politicians to, say, an independent commission of judiciary experts? And what if that commission had to use articulable, relevant criteria by which to assess the qualifications of candidates. And what if it were charged with eliminating B types and screening out all but, say, the five most highly qualified A types, from which the president would need to nominate one?
We have examples of this in other spheres. The executive headhunter industry, for instance, serves this function in the business world. Executive recruiters find the objectively best qualified person to fill mission-critical positions. They act free from the biases, short-term interests, personal motives, and internal squabbles of powerful corporate insiders.
Other first-world democracies have similar screening and selection processes for their highest courts. In those countries, independent commissions with mere dotted-line connections to legislators or heads of state screen out the good candidates to get the great ones. In France, the High Judicial Council does the heavy lifting. In the United Kingdom, it’s the Judicial Selection Commission. Historically in Israel, it has been the Judicial Selection Committee. Those are pluralistic bodies, typically composed of judges or justices, officeholders or appointees of officeholders, prosecutors, practicing lawyers, representatives from the national bar association, and sometimes well-qualified non-lawyers.
Those commissions generally review applications from candidates, short-list the best prospects, and investigate and interview them. They analyze candidates’ judicial opinions, books, and law review articles, and they consult outside legal professionals and scholars. They evaluate the best candidates against specified criteria that go beyond credentials and experience. They ultimately identify a few candidates from whom the country’s appointing authority must select.
A commission-driven process is intended to squeeze out politics, eliminate candidates with radical philosophies, and produce justices of impeccable integrity, high intellect, broad knowledge, and solid judgment and legal abilities. The process may not be perfect—a B justice might still slip in. But the chance of that happening is much reduced. The resulting court puts out better decisions and enjoys elevated levels of public confidence and respect.
Still, that process only reduces the risk of appointment errors without eliminating them. Systems with that process might still need something to keep justices accountable, to promote sound legal decisions and develop the law in a beneficial way, and to restrain justices from bending the law to serve partisan ends.
Would term limits with staggered terms work? If the Constitution could be amended to provide for that, a non-A justice would be gone at the term’s end. And staggered terms would reduce the chance of any single president stacking the Court with partisan compatriots. That would help a lot but won’t solve everything. B justices could still do much harm before their terms expire. And term limits are blind to whether a justice is an A or a B—both must leave when their terms expire, depriving the Court of the seasoning and continued wisdom of the more experienced A types.
What if the Constitution were amended to make a justice stand for retention every several years, allowing voters to turn a justice out if they are unhappy with the justice’s performance? Many states have judicial retention elections as an accountability mechanism. But that can be undesirable if applied to justices. The rule of law does not always follow nationwide popular opinion—constitutional principles are often meant to protect the interests of a minority from majority counterforces. And because popular opinion can be easily molded by well-funded special interest groups and misinformation campaigns, retention elections for justices could become just as contentious as any other election, leading to unwanted consequences in who remains a justice and how the justices decide constitutional issues.
Still, one feature of retention elections might be worth considering: judicial performance evaluations. In many states with retention elections, a neutral committee extensively evaluates each judge to inform voters on whether the judge should be retained. Even some states without retention elections issue judicial performance evaluations. Almost 20 years ago, the ABA Judicial Division Lawyers Conference developed guidelines for judicial evaluations “to have the best judiciary in the world.”
If done correctly, judicial performance evaluations can be a powerful accountability tool. The process involves collecting data, analyzing it, and then using it constructively. Under current state evaluation practices, evaluation committees review jurists’ decisions. They also solicit feedback from attorneys, jurists at the trial and appellate levels, and other reliable sources. The sources’ identities and their feedback are confidential, but the analysis becomes the heart of the committee’s written evaluation.
The effectiveness of that process turns largely on the committee’s perceived impartiality, measured by its independence, broad base, and diversity. It turns also on the evaluation criteria and on how the data are collected and the final report is used.
Assuming committee impartiality and reliable data collection could be ensured, what then should be the evaluation criteria? The criteria should be factors that measure how closely a justice aligns with A-type or B-type characteristics. Legal ability and reasoning, ethics, and integrity would be important, but the evaluation should begin, not stop, there.
Intellectual honesty should also be assessed. How? By looking at whether the justice treats precedent accurately or, instead, stretches it to fit a materially different situation. Or by comparing whether, in deciding one case, the justice abandons principles that the justice used in another case. Or by whether the justice distorts facts or overlooks inconvenient ones.
And there should be a score for the justice’s humanity. How consequential are the justice’s rulings in human terms? Do those rulings make people’s lives better or worse? Do they relieve suffering, perpetuate it, or exacerbate it? Do they promote fairness? How closely do they hew to the values in the Constitution’s preamble? Do they help form a more perfect union, establish justice, ensure domestic tranquility, improve the general welfare, and secure the blessings of liberty? Do they improve the world or set it back?
By itself, adhering to stare decisis would be neither an automatic plus nor an automatic minus. Some decisions ought to be overruled. But overruling a precedent could be a demerit when the justice’s reasons are reviewed under other criteria.
Once the data are collected and evaluated and the report prepared, what then? In states that have retention elections, a judge whose retention is approaching gets to see the report in advance. Many judges who are unhappy with their evaluations decide not to stand for retention. Not only is retention often impossible in the face of a poor evaluation, but if a judge withdraws, the evaluation is not made public.
Even though Supreme Court justices do not stand for retention as state judges do, might they also be concerned about getting a poor evaluation? If justices knew that their evaluations could become public, might they be motivated to limit partisan impulses, to be more faithful to the facts, to avoid taking intellectual shortcuts, and to consider ways to temper their rulings to benefit humanity?
True enough, not even a poor evaluation can require a justice to retire. But it would hold up a mirror, letting the justices see the way that knowledgeable, thoughtful, and respected people view them and their work and how history will remember them. And if a justice has any dignity or shame, perhaps the fear of embarrassment that might come from public disclosure of a poor evaluation might, just might, prompt the justice to withdraw from Supreme Court service and take a position in a lower federal court, go into private practice, or accept a teaching position in a law school. Doing so would keep the evaluation confidential as happens when state judges withdraw from retention elections.
Understandably, some justices might bristle at being critiqued every few years by an official committee. They might believe that it would diminish respect for the Court or make the Court less supreme. They might resent the intrusion on the presumed infallibility that comes from having the final say on the law.
But isn’t that even more reason to have a mechanism like this? Feedback is a gift. Justices who are confident of earning a favorable evaluation would welcome it. Only those who are less confident might not. Those are the very justices, though, for whom evaluations are most needed. Otherwise, as Justice Kagan observed, life tenure would truly insulate them from their errors. And if we go much longer without some accountability tool, those errors can rock the country’s foundation. Or turn the world upside down.
