The recommendations took the form of 29 Principles for achieving landmark reform in our courts, and sent ripples across our civil justice system, at both the state and federal levels. These tests have informed our new, final recommendations, which should serve as a guidepost for reform nationwide. Now, these 24 revised Principles lay the foundation for achieving fundamental improvement of our system to help ensure that no one is shut out due to a lengthy and expensive process.
The recommendations are defined in the new publication Reforming Our Civil Justice System: A Report on Progress and Promise , and include calls for a sharp realignment of the discovery process and greater court resources to manage cases.
We believe these are those principles. The Fund for Modern Courts is a non-partisan, independent, statewide, court reform organization that advocates for the improvement of the New York State court system and for ensuring a diverse, highly qualified and independent judiciary. McCloy Award Samuel J. Duboff Memorial Award Hugh R.
Jones Memorial Lecture Cyrus R. Vance Tribute Publications Contact Donate. However, this proposal raises the same concern about how the balance would be maintained over time, and perhaps most importantly, there are serious questions as to how the 10 members could select the remaining five justices in a constitutionally defensible manner. Another approach is to address conservative court packing head-on. In theory, this should not have been a problem, since Supreme Court justices had often been confirmed during times of divided government in the past.
An Obama nominee would have altered the balance of the Supreme Court so that, for the first time in nearly 50 years, conservative appointees would not be the majority on the court. Jon Huntsman Jr.
R-UT and former Sen. Even highly-contentious nomination battles in the past … followed the normal process of hearings and an up-or-down vote. The effort to steal this Supreme Court seat had real implications for the American people. During that time, it deadlocked on important cases, including one that would have prevented the inhumane deportation of immigrant families.
Justice Neil Gorsuch was appointed by President Trump and confirmed by the Senate on April 7, , securing conservative control over the Supreme Court. To address this conservative court packing, policymakers could seek to undo its effects by expanding the size of the Supreme Court under the next progressive president in order to allow for the appointment of additional justices.
Correcting prior partisan court packing has historical precedent. In , after Thomas Jefferson was elected president, the outgoing majority party in Congress—the Federalists—decreased the size of the Supreme Court from six to five members in order to prevent him from filling a vacancy on the court. The more well-known historical example, however, is that of former President Franklin Delano Roosevelt. In , Roosevelt threatened to expand the Supreme Court from nine justices to as many as By stacking the court with appointees of his choice, Roosevelt hoped that New Deal policies would be implemented without delay.
While Roosevelt faced significant political opposition to this proposal, shortly after announcing his intentions, conservative Justice Owen Roberts joined with the progressive justices in West Coast Hotel Co. This approach has the benefit of directly addressing the issues caused by conservative court packing, including harmful precedents established by the current packed Supreme Court.
However, there are worries that adding justices to the court could result in a judicial arms race between conservatives and progressives in which each side seeks to expand the size of the court when it has the ability to do so. If the court is expanded, it is possible—or even likely—that upon retaking power, conservatives would seek to further expand it.
At some point, a continued back and forth might lead to public frustration and concern. Therefore, compared with other reforms, this approach would likely be less stable over time and could potentially harden the recent politicization of the court. The American public could also end up viewing the Supreme Court as nothing more than another political body, weakening respect for and trust in its rulings. This risk is likely heightened by the significant public attention that would attach to any effort to add justices.
Moreover, adding justices would not reduce the significant role that chance plays in the makeup of the Supreme Court, as an unexpected vacancy could shift the power balance in the court to either direction. But these concerns must be viewed in light of the current reality: Conservatives are already engaged in a massive court packing effort that has politicized the judiciary to an unprecedented degree.
The question is not whether to pack the courts but how to respond to it. Moreover, they should consider that concerns about the court are likely to arise in the absence of any action too, as the conservative-packed Supreme Court overturns or undermines popular long-standing rights and democratically enacted laws. It is worth noting that this proposal has application beyond the Supreme Court as well; given conservative efforts to pack the appellate courts, policymakers could adopt a similar approach to that issue by adding new circuit judgeships.
Setting term limits for Supreme Court justices and federal judges is a particularly popular reform among legal scholars and the public alike. Over the past years alone, average life expectancy in the United States has increased from an average of about 38 years to nearly 80 years.
Supreme Court justices who served between and , on average, held their posts for less than 10 years, vacating the bench before the age of Congress does not necessarily need to pass a constitutional amendment to establish term limits for federal judges. Rather, term limits may be established through simple legislation. A number of proposals for term limits have emerged over the years, but the most popular is for year nonrenewable terms.
Alternatively, they could choose to be reassigned to one of the circuit or district courts. Judges serving on other federal courts could similarly be delegated to senior nonactive status once their term expires. Regardless of their new posts, judges would retain their original salaries. And if they were to die or retire before their term expired, the sitting president would be empowered to appoint a temporary justice from the circuit or district courts to fill the open position until the term of the former justice was set to expire.
Once a permanent replacement was appointed, temporary judges would go back to serving on the federal court from which they came. This would help to avoid the problem of allowing a single president to dictate the makeup of the federal judiciary for a generation simply by entering office at an opportune time. To the extent this is a concern, however, term limits could be coupled with an expansion of the Supreme Court to ensure that no single president is able to appoint a substantial percentage of justices.
There are a number of benefits to term limits. They have the potential to increase diversity by allowing for new appointments while simultaneously diminishing the influence of any one judge, since judges would be cycled in and out more frequently. Term limits could also ease concerns over elderly judges with health problems presiding over cases late in life.
However, term limits would not directly address the current partisanship on the Supreme Court and, given that most conservative justices were recently appointed, would not reduce the impact of conservative court packing. They would also have the potential to increase partisanship and create conflicts of interest. One of the strongest arguments in favor of life tenure is that it insulates federal judges from such conflicts, especially from potential employers who come before their chambers.
Once they retire, judges could be prohibited from working on behalf of corporations or organizations, including subsidiaries, that were parties in any case they oversaw. Judges vacating the bench should be required to recuse themselves in cases where potential employment has been discussed with one of the parties.
Recusals should apply regardless of whether a hard offer has been extended. The more challenging issue is how to deal with judges who view their limited time on the bench as an audition for political office or some other position within the political ecosystem. It is not clear how to design recusal requirements to address this concern, and it could create an even more politicized judiciary than already exists. In addition to these concerns, while some scholars believe statutory term limits pass constitutional muster, others disagree.
For example, some scholars have suggested that instead of passing legislation requiring term limits, the president and Congress could refuse to nominate and confirm judges who do not formally pledge to serve limited terms. No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost years after Washington. While this approach could work in theory, it would likely lead to substantial issues in practice.
Nonlegislative options are open to significant risk of gaming, particularly in a hyperpartisan environment. For instance, the only enforcement mechanism would be for Congress to impeach a judge that violates the commitment—a particularly challenging proposition.
And any president could simply choose to ignore the requirement provided the Senate does not object. Given that the precipitating factor for discussing these types of court reforms is that partisans have repeatedly violated norms in the nomination and confirmation of judges, it seems unlikely that a reliance on norms would fix the issue. Currently, the president has complete discretion over federal judicial nominations. Presidents often seek advice from trusted advisers and the U.
Department of Justice. President Trump, for example, made clear beginning in that he would nominate only Supreme Court justices who were recommended by the Federalist Society and would overturn Roe v. One way to minimize partisan influence over judicial nominations is to create an independent commission tasked with recommending qualified judges for appointment to the federal bench.
The commission could be comprised of retired judges from the district and circuit courts, as well as representatives from the American Bar Association ABA. Experts in judicial ethics could be appointed to lend an academic perspective on ethical trends and historical red flags. Similar commissions are used to appoint judges to courts in several states and other democracies.
In addition to ensuring that judicial nominees are objectively qualified and even-tempered, the commission could help improve judicial diversity by placing an emphasis on recommending judges belonging to historically underrepresented groups with diverse backgrounds and experiences. The judicial nominations process offers perhaps the most effective way to improve diversity on the federal bench.
Former President Obama recognized this during his tenure in office. Of federal judges appointed by Obama, 42 percent were women and 36 percent were nonwhite. While there are certainly benefits to an independent commission for nominating judges, there are also some real practical concerns to this approach. However, even this modified proposal has issues. It would not address conservative court packing, as it would operate only prospectively. As with other norms-based approaches, this proposal seems unlikely to have a significant impact in the current environment.
Rather than reduce the partisanship of the Supreme Court itself, a more extreme proposal would simply limit the ability of the court to hear certain cases. Constitution requires the Supreme Court to have original jurisdiction over limited classes of cases.
As a result, the line between permissible and unconstitutional court stripping is unclear and hotly debated among legal experts. The case Patchak v. The dissent saw things differently. Although the act did not direct courts to find for plaintiffs or defendants per se, automatic dismissal has the practical effect of benefiting one party over another.
There are a few different approaches to court stripping: Congress could potentially prohibit the Supreme Court from hearing certain types of cases or try to revoke its appellate jurisdiction altogether and permit the court to hear only those cases the Constitution explicitly requires. This proposal to limit the reach of the current Supreme Court raises a number of serious concerns.
It would make it difficult to undo existing precedent that would still be binding on lower courts. There is also a high risk of partisan escalation if the Supreme Court were stripped of jurisdiction over a limited set of cases, as opposed to being restricted only to original jurisdiction.
Conservatives would likely respond by stripping the court of jurisdiction over more cases, and progressives would later likely respond in kind—eventually leading to very limited jurisdiction for the court. In addition, court stripping would lead to diverging legal policy across the country since the Supreme Court could not address circuit splits. While other proposals would make it harder for the Supreme Court to overturn lower court decisions, this approach would make it impossible.
So even in the most egregious cases, lower court decisions would be the final word. There are real concerns that such an approach could disproportionately affect historically underrepresented groups. For instance, in certain regions, lower federal courts could severely limit reproductive rights or the rights of LGBTQ people.
Leaving determinations of law in the hands of regional courts would not be a problem for Americans privileged enough to move to more favorable areas, but it would leave vulnerable people without critical resources and access to justice. In addition to reducing partisanship on the Supreme Court by changing its makeup, steps can be taken to ensure that the justices and other federal judges are less susceptible to special interest influence.
There is currently no binding code of conduct for Supreme Court justices. The absence of strong ethics requirements and enforcement mechanisms results in conflicts of interests being left unaddressed, leading to potential miscarriages of justice.
Federal judges have overseen cases in which they, their friends, or their family members stand to personally benefit. Even the mere appearance of impropriety is enough to raise significant concern. Ethics reform is needed to ensure that judicial decision-making is based on law, not financial interests or personal relationships.
The Judicial Conference of the United States, comprised of federal judges and headed by the chief justice of the Supreme Court, creates and periodically updates a code of conduct for U. Each of the five ethical canons has subcanons providing additional guidance on judicial conduct. The Judicial Conference has additional requirements for judges receiving gifts or outside income. Enforcement mechanisms for ensuring compliance with these rules and obligations are limited.
The Judicial Conduct and Disability Act allows individuals to file complaints against lower court judges for alleged unethical behavior. Congress also has the power to impeach federal judges for bad behavior.
For instance, there is nothing stopping judges from accepting exorbitant speaking fees from corporations and interest groups with stakes in federal cases. FEC , which benefited the Koch brothers. Similarly, corporate-funded interest groups are permitted to pay federal judges to attend seminars where they hear the industry perspective on issues facing the courts. Often, these are all-expense-paid trips to lavish resorts—extended free vacations. From to , Justice Scalia took more than trips that were paid for by various groups and individuals, including trips to Hawaii, Ireland, and Switzerland.
In reforming judicial ethics, it is of paramount importance that ethics requirements apply equally to Supreme Court justices and other federal judges. In addition to ensuring they apply to the Supreme Court, ethics requirements should be clearly specified and expanded upon.
For instance, federal judges and justices could be banned from owning individual stocks or required to disclose private events they attend, as well as the name of the individual or entity responsible for financing their appearance and travel. Alternatively, any judicial travel or speaking engagement funded by private entities could be subject to preapproval by a judicial ethics committee such as the one explored in the next section.
Going further, Congress could ban judicial junkets and other gifts to sitting judges altogether. Imposing a binding code of ethics on the Supreme Court raises constitutional questions. Besides strengthening ethics standards for sitting judges, elected officials must pay more attention to the ethical and professional competency of judicial nominees. Even if judges can separate themselves from personal biases, their association with such groups bring into question their objectivity—and, in turn, the legitimacy of their rulings.
Finally, no judicial nominee should be confirmed if an investigative panel concludes that ethics complaints made against them merit further review. Strong ethics requirements must be coupled with effective enforcement mechanisms. Enforcement is needed for recusals and to ensure compliance with other ethical requirements.
Although judicial ethics urge judges to recuse themselves in certain cases, they currently cannot be forced to do so. The appeals process offers litigants one option for holding judges that refuse to recuse themselves accountable.
In , the U. Massey Coal Co. We need efficiency up the court ladder. We need to use everyone within the court structure more effectively and efficiently. There are cases in which the litigants can benefit from processes that make use of trained nonjudicial personnel for oversight and management. Those cases must be identified at an early point in time and placed on a different track. We need smart use of technology. We need to use technology for efficiency, effectiveness, and clarity—in the courts, in law practice, and in ensuring that the system is accessible for nonlawyers.
Litigant portals, push notifications, and other user-friendly technologies must be imported into the courts. We need to value our court system. As lawyers and judges, we need to fight for appropriate budgets for the courts and fight to defend the courts. We also must fight to preserve the right to trial by jury in civil cases, as well as criminal. We need to realign incentives. We need to focus on the incentives driving lawyers and judges and work to align them with our goals for improvement of the system as a whole.
For example, the hourly rate may be a deterrent to change. So, too, may be court time standards that focus on time to disposition rather than procedural fairness. Like politics, culture is local. Each of these top changes will have different challenges in different jurisdictions. For example, Arizona has a history of initial disclosures—because of state court rules that came into effect in the s.
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