The Presidential Commission on the Supreme Court failed the president

Both the left and the right have been highly critical of the final report issued recently by the Presidential Commission on the Supreme Court of the United States. From the left, for example, political scientist Austin Sarat of Amherst College concluded in a Slate article that the commission was a “complete failure,” while the Heritage Foundation’s Thomas Jipping opined from the right in The Daily Signal that the commission accomplished “nothing.”

The commission’s beginnings trace to pressure then-presidential candidate Joe Biden was facing from the left to endorse its call to “pack” the Supreme Court with justices who would vote the way liberals want them to vote. The right, of course, is perfectly satisfied with the super-majority of six conservative justices who currently sit on the nine-member court.

What I found most troubling about the commission’s report was how superficial the discussion of judicial independence was. After all, in the executive order establishing the commission, President BidenJoe BidenCourt nixes offshore drilling leases auctioned by Biden administration Laquan McDonald's family pushes for federal charges against officer ahead of early release Biden speaks with Ukrainian president amid Russian threat MORE directed it to provide an account of the “role and operation of the Supreme Court in our constitutional system” and an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

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Compliance with the president’s directive required more than the bromides contained in the commission’s report, such as “judges should not be partisans,” “their rulings must not be influenced by personal favoritism or family relationships,” and they must “decide cases solely according to the law.” An exploration of the origins of judicial independence in America is conspicuously absent from the report, which means that Biden will be deciding whether the nation’s highest court should be reformed without the historical and theoretical background he needs.

Most tellingly, the report fails to note that an independent judiciary is the American contribution to separation of powers theory. John Adams was the American founding’s most sophisticated political theorist and when he modified Montesquieu’s conception of the separation of powers by developing what can be fairly termed the political architecture of an independent judiciary, he articulated an idea that helped make possible the court’s power to void laws that conflict with the Constitution. Adams’s contribution to the notion that all government power must be checked and balanced is arguably as significant as that of the French baron whose work inspired him and the other American Founders.

Adams published his most systematic statement about judicial independence in his 1776 pamphlet “Thoughts on Government.” The pamphlet — a clarion call for separation of powers written in response to Thomas Paine’s recommendation in "Common Sense," during the initial rush of state constitution-making, that all government power be vested in a unicameral legislature — insisted that “The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

Adams recommended that judges be “nominated and appointed by the governor, with the advice and consent of council.” However, he argued for more than merely making the judiciary a separate branch of government. He called for stable judicial compensation and tenure so long as judges behave well: “[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Adams also insisted that judges who misuse their offices should be impeached by the “house of representatives … before the governor and council” and, “if convicted, should be removed.”

Adams was serving as a diplomat in England during the framing of the federal Constitution of 1787. Although the Constitution excluded the president from participating in the impeachment of other government officials, it otherwise contained principles identical to Adams’s proposal, which was widely known by the delegates to the constitutional convention that met in Philadelphia: The Supreme Court is a separate branch of government, the justices enjoy life tenure during good behavior, and their salaries cannot be diminished while they are in office.

To jump ahead two-and-a-half centuries from Philadelphia in 1787 to Washington in 2021, how is Biden supposed to decide whether Supreme Court justices should be subjected to term limits when the commission’s report fails to explain the origins of the Constitution’s life tenure provision? Similarly, how can the president be expected to know whether to try to “pack” the court without understanding why the Founders established an independent judiciary in the first place? I could go on. Suffice it to say that because the commission’s report says almost nothing about the origins of judicial independence in America, I must regrettably join the chorus that considers the commission to have failed the president.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press).