The Presidential Commission on the Supreme Court reconvened on Tuesday to hear from a new set of experts on various ideas for Supreme Court reform. Like the last meeting, various legal experts testified and answered questions from commissioners in a series of panels spread throughout the day. President Joe Biden appointed the 36-member commission to write a report on various court-reform options.
The key topics included the confirmation process, term limits, transparency and disclosure, expanding the size of the court, and the court’s role in a constitutional government. Emerging as the topic of greatest interest among panelists and commissioners alike was term limits, although there was also some interest, especially in earlier panels, for the adoption of a formal code of ethics for the justices.
The commissioners first heard from Kenneth Geller, a partner at Mayer Brown, and Maureen Mahoney, a partner at Latham & Watkins, who represented the views of a group of attorneys who practice regularly in front of the Supreme Court. In their view, most of the popular reform proposals are unnecessary, would be subject to constitutional challenge, or should be enacted by the court’s own internal processes, if at all. For instance, they view court-expansion proposals as representing an “escalation of the problem, not a solution.” But the group does support a constitutional amendment imposing 18-year term limits and allowing each sitting president to fill two seats per four-year term, although the group believes that term limits imposed by statute would pose constitutional issues.
Gabe Roth, executive director of Fix the Court, presented a different view. He said the political climate is ripe for various judicial reforms – including term limits, which his organization believes can be implemented by statute without running afoul of the Constitution. These and other reform efforts are currently “deeply popular,” he said, with 70% of people supporting permanent livestreaming of oral arguments and ending life tenure.
Turning to judicial confirmations, panelists and commissioners largely agreed that the confirmation process has been one of the driving forces in raising the political temperature in recent years and has created the perception of Supreme Court justices as partisan actors. Commissioner David Strauss, a professor at the University of Chicago Law School, mentioned that one thing he sees as an “unhealthy relationship” is that each nominee is given a “team” during Senate confirmation hearings. It is only natural, Strauss said, to get the feeling that the nominee’s partisan team is on their side and that the other side is the adversary. Panelist Jeff Peck, a managing partner at Tiber Creek Group, agreed with this sentiment and went on to explain that celebratory events following confirmation hearings also appear unseemly and give the impression that nominees are like clients of the White House who can be used as political tools for a particular administration.
Term limits emerged as the leading reform proposal, and the commissioners seemed interested in fine-tuning how they will treat that subject in their report to the president, which is due this fall. Commissioner Rick Pildes, a professor at New York University School of Law, commended the idea of term limits, mentioning that it seemed like there is “a great deal of support behind” it and that, although practitioners seem resistant to many ideas, most think term limits are acceptable.
Much of the panel discussions spent a great deal of time on how term limits could be implemented. One consideration is the specific duration. An 18-year term limit would mean a new justice every two years – or two appointments per presidency. Other potential timeframes include 12 or 16 years. But as Vicki Jackson, a professor of constitutional law at Harvard Law School, explained, 12 years may be too short and could allow a two-term president to appoint six of the nine justices.
Another consideration is the proper means of implementing term limits. Commissioners were interested in whether such a change could be effectuated by statute or whether a constitutional amendment would be necessary. Responses on this topic were mixed. While everyone agrees that a constitutional amendment would suffice, amendments are very difficult and would require wide bipartisan support. A statute, on the other hand, would be much easier to implement, but it could raise constitutional issues because Article III states that federal judges “shall hold their offices during good behavior.”
When asked about the feasibility of term limits established by statute, Jackson explained that a statute may not be “clearly unconstitutional,” but there are “significant counterarguments” against it. For instance, the independence of the justices could be harmed by the removal of life tenure. Other considerations include the proper timing around how and when to implement term limits in conjunction with sitting justices. And as Tom Ginsburg, a professor of international law and political science at the University of Chicago, explained, both the removal and the appointment must then be considered once life tenure is removed.
Commissioner Michal Waldman, the president of the Brennan Center for Justice, said it has been “striking for us as members of the commission” how widespread the support for term limits is across the political spectrum. Solutions presented by the introduction of term limits include less gamesmanship by justices in choosing their replacements, more predictability in turnover and appointment, as well as less of an incentive to appoint younger justices to ensure a longer foothold on the bench. As Margaret Marshall, the former chief justice of the Supreme Judicial Court of Massachusetts, put it, limited terms reduce the incentive to appoint younger judges for 40 to 50 years of service; however, she emphasized, “the linchpin is always a single lengthy tenure so that when a judge issues a decision, they do not find themselves out of a job the next go around.”
Recordings of the prior meetings and information on the panelists along with their corresponding written testimony can be found here. Public comments are posted here. The final three meetings are scheduled for Oct. 1, Oct. 15 and Nov. 10. The report will be submitted to Biden and made public on Nov. 14.
In a sign that the Supreme Court is slowly returning to normal business, the court on Monday rescinded COVID-related orders that relaxed certain procedural requirements during the pandemic. For petitions seeking Supreme Court review, the extended 150-day filing deadline returns to the 90-day filing deadline (the norm under the Supreme Court’s rules). The return to the 90-day deadline applies to cert petitions seeking review of any lower-court decision in which the relevant judgment or order is issued on or after July 19.
In addition to revoking the filing extension, Monday’s order requires the filing format (relaxed under COVID conditions) to return to normal soon. Beginning on Sept. 1, certain documents must be submitted in booklet format and in multiple copies as specified under the court’s rules. Single copies on letter paper will no longer be allowed.
There is still no word on resuming in-person oral arguments in October.
SCOTUSblog has shone a light on the shadow docket, but as its breadth and import evolves, so must those who cover it. Professor Steve Vladeck, who has written on the topic extensively and recently testified before the House Judiciary Committee, joins SCOTUStalk to discuss the shadow docket’s significance and how to better capture all of the court’s work.
This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the proper standard of liability applied to police high-speed driving incidents, the relevance of training and law enforcement policies in qualified-immunity cases, and whether the First Amendment protects the right to record police officers carrying out their official duties in public spaces.
In 1998, the Supreme Court held that high-speed police chases resulting in death, due to “deliberate or reckless indifference to life,” do not violate substantive due process rights unless the officer intended to cause harm unrelated to the legitimate object of arrest. While the U.S. Courts of Appeals for the 8th and 9th Circuits follow a strict “intent-to-harm” standard in all cases involving police high-speed driving, courts in other circuits have opted for a more objective standard. The U.S. Courts of Appeals for the 3rd, 4th, 7th and 10th Circuits inquire into the specific circumstances of each case to determine whether the officer had an opportunity to deliberate and whether the emergency justified such driving – often applying a deliberate-indifference standard rather than intent-to-harm.
In Braun v. Burke, officer Brian Burke drove his cruiser for about five minutes at an average speed of over 90 mph, past 60 other vehicles, with no blue lights or siren engaged, before colliding with a bystander vehicle at 98 mph, killing both occupants. Burke claimed that he was seeking an SUV that he saw speeding earlier. But he did not claim to have been in “pursuit,” and according to Arkansas State Police policy, pursuit requires that “lighting equipment and siren shall be in operation throughout the pursuit.” Lori Braun sued in district court on behalf of Cassandra Braun, who was killed in the accident. But the district court dismissed – in reliance on the intent-to-harm standard – holding that no due process violation occurred because there was no evidence that the officer “intended” to harm anyone. The 8th Circuit affirmed, agreeing that the intent-to-harm standard was proper and declining to consider whether an objective emergency was present or whether actual deliberation occurred.
High-speed driving accidents involving police officers result in a fatal crash every day in the United States, and analysis of such incidents varies by circuit. The justices are asked for their review to clarify whether the intent-to-harm culpability standard of liability should be used to resolve all claims arising from high-speed driving incidents or if some further inquiry is required when the circumstances call for it.
Next, in Frasier v. Evans, the court is presented with another question surrounding police liability and a First Amendment question involving the right to record officers. The city of Denver police are trained that members of the public have the “right to record them.” In 2014, Levi Frasier took out his tablet to record an altercation between police and a suspect, which resulted in the suspect being taken away in an ambulance. After the officers involved noticed Frasier recording the incident, they approached him and pressured him to hand over the device before searching through it for the footage.
Frasier sued in district court, arguing that the officers violated his First Amendment rights by retaliating against him for filming them. The district court rejected the officers’ claim that they are entitled to qualified immunity, reasoning that it would make no sense to allow the city and county to avoid liability on the ground that it had a “policy in place” while also allowing the individual officers to invoke qualified immunity on the ground that the law was not sufficiently clear to put them on notice. The officers appealed, and the 10th Circuit reversed, reasoning that judicial decisions – not training or municipal policies – are the only valid source of clearly established law and the circuits are split over whether the First Amendment protects the right to record officers performing their official duties in public places. Because the appellate court also decided that lower-court decisions on the issue were not enough to clearly establish the rule, it reversed. Frasier asks the Supreme Court for review to clarify whether training and law enforcement policies can be used as evidence in a qualified-immunity inquiry and whether the right to record police officers is a clearly established First Amendment right.
Braun v. Burke
21-10 Issues: (1) Whether a court should apply the intent-to-harm standard of liability to all police high-speed driving, as have the 8th and 9th Circuits, or instead employ an analysis which examines the facts of individual cases to decide whether there was an opportunity to deliberate and apply the standard of deliberate indifference or another standard other than intent-to-harm, as have the 3rd, 4th, 7th, and 10th Circuits; and (2) whether a court reviewing high-speed driving by a police officer should use an objective test to determine whether an emergency existed, as have the 3rd, 4th, and 7th Circuits, or rely merely on the asserted claim of an officer that he subjectively believed there to be an emergency, as has the 8th Circuit.
Shenandoah Valley Juvenile Center Commission v. John Doe
21-48 Issues: (1) Whether professional judgment rather than deliberate indifference is the proper constitutional standard for a claim of inadequate medical care brought against a secure juvenile detention center by a minor immigrant detainee in federal custody; and (2) whether a minor’s claim for injunctive relief seeking constitutionally adequate medical treatment from a secure juvenile detention center may be redressed by the court without a parent, guardian, or legal custodian joined as a party to the case.
Frasier v. Evans
21-57 Issues: (1) Whether training or law enforcement policies can be relevant to whether a police officer is entitled to qualified immunity; and (2) whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.
Less than a month after the Supreme Court refused to disturb a federal moratorium on evictions imposed by the Centers for Disease Control because of the COVID-19 pandemic, the state of Florida on Friday asked the justices to block the COVID-related restrictions that the CDC has outlined for cruise ships to follow before returning to sea. A federal district judge had blocked the CDC from enforcing the restrictions in Florida, but on July 17 the U.S. Court of Appeals for the 11th Circuit put his ruling on hold, prompting the state to seek emergency relief at the Supreme Court. The move came one day after CNN reported that the state’s current seven-day average of new daily COVID-19 cases is the highest in the nation.
Update (Friday, July 23, 9:10 p.m.): Shortly after Florida filed its emergency request at the Supreme Court, the 11th Circuit unexpectedly withdrew its July 17 order and, in a new unsigned order, allowed the district judge’s ruling to take effect. The 11th Circuit’s new order means that the CDC is blocked from enforcing its restrictions in Florida while the litigation proceeds in the 11th Circuit, and it likely renders Florida’s request at the Supreme Court moot. The remainder of our original article (published prior to the 11th Circuit’s reversal) appears below.
Most cruise ships voluntarily stopped sailing once the seriousness of the pandemic became apparent, and in March 2020 the CDC issued a “no-sail order” that stopped any remaining cruises. That order remained in effect until the end of October, when the CDC issued the “conditional sailing order” at the heart of Florida’s challenge. The order creates a four-phase approach for cruise ships’ safe return to sailing – requiring, for example, simulated cruises to test COVID protocols onboard each ship. Only five of the 65 ships that sail out of Florida have been approved to return to cruising, according to Florida’s filing on Friday.
The cruise industry plays an important role in Florida’s economy. Ten major cruise lines have their headquarters in the state; in 2019, nearly two out of every three people who boarded a cruise in the United States did so in Florida. The state went to court in early April, arguing that with the CDC’s restrictions in place the “cruise industry would not re-open” in time for summer cruising. It argued that the conditional sailing order exceeded the CDC’s authority.
The CDC countered that the federal government “has a long history of acting to combat the spread of communicable disease,” but U.S. District Judge Steven Merryman sided with the state. Stressing that the CDC has never “implemented measures as extensive, disabling, and exclusive” as the conditional sailing order, Merryman blocked the CDC from enforcing the order against Florida cruise ships.
The CDC appealed to the 11th Circuit, which issued a brief order on July 17 that put Merryman’s ruling on hold, allowing the CDC to enforce its restrictions, while litigation continues.
In its 23-page filing on Friday, Florida asked the justices to lift the 11th Circuit’s stay and allow Merryman’s ruling to take effect. The state reiterated that the CDC has only “limited powers to enact traditional quarantine measures.” Federal law does not, Florida stressed, “permit the agency to remake the entire cruise industry.” The state noted that five justices agreed that the CDC went too far with the eviction moratorium, which relied on the same federal law, but Justice Brett Kavanaugh ultimately declined to lift the moratorium because it was set to expire soon anyway. By contrast, the state emphasized, the CDC’s order in this case is slated to last at least until November. Unless it is lifted, “Florida is all but guaranteed to lose another season” of cruising “while the CDC pursues its appeal,” the state told the justices.
Florida’s request went to Justice Clarence Thomas, who handles emergency appeals from the 11th Circuit. Thomas can act on the application on his own or refer it to the full court.