Federal Courts and Nominations

CAC’s Testimony to Presidential Commission on the Supreme Court of the United States

As the Presidential Commission on the Supreme Court of the United States pursues its
important work, we at CAC appreciate the opportunity to submit this testimony.
The federal judiciary, with the Supreme Court at its head, provides in our
constitutional democracy the promise of access to justice, in aid of establishing a
government that is both accountable to the people and protective of their rights and
liberties. But the Court has far too often fallen short of that promise.

At too many moments in history, the Court has tried to bend our constitutional arc
of progress back toward oppression rather than freedom, as it did when it thwarted
the promise of the Fourteenth Amendment in ruling after ruling that doomed the
project of Reconstruction and set back the cause of equality and racial justice for
generations. The Court has taken essential legislation aimed at establishing a
truly free and fair, multi-racial democracy and, without legal justification, stripped
the law of its unmistakable meaning and opened the door to voter suppression.
The Court has erected arcane and nearly impenetrable doctrines that prevent
people from accessing the courts, betraying the fundamental right to come to the
courts to remedy wrongdoing and hold the powerful to account through our justice

CAC urges the Commission to view its remit through the lens of justice: what are
the problems of justice that court reform can and should solve in this moment?
Can these problems of justice be solved by adding more seats on the Supreme Court
or instituting some form of term limits? Perhaps. There is nothing sacred about the
number nine when it comes to the Supreme Court, and the Constitution gives
substantial discretion on how the Court is structured. What is sacred is the Court’s
duty to equitably and fairly apply the law, manifesting the promise of our
Constitution’s text and history and ensuring meaningful access to courts—and
public faith in the Court’s ability to administer equal justice under law. Whether
the Court has ever lived up to this duty, or earned this faith, are legitimate
questions; whether any reforms can be instituted to help make it so should be the
primary goal of this commission.

Issues of Supreme Court expansion or term limits, however, should not end the
Commission’s discussion. There are other—often overlooked—issues related to our
judiciary that warrant your attention, as well. Among them is the Supreme Court’s
emergency orders process—known as the shadow docket. When the Court issues
orders as part of its shadow docket, it is all too often acting without the sustained
consideration, reflection, transparency, and accountability Americans expect from
its highest Court. Bringing the shadow docket into the light should be an essential
part of the Commission’s recommendations. The Court is deciding matters of life
and death, issues of vital and urgent importance to the daily lives of people in this
country—and sometimes shifting the law significantly in the process—in ways that
are not in line with the hallmarks of fairness and transparency we expect and
deserve from the Supreme Court.

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