After serving on the Presidential Commission on the Supreme Court of the United States, Pritzker Prof. Michael Kang and 33 other commission members voted unanimously to submit their report to President Joe Biden in December 2021. 

Their research comes as debate continues over the role of the Supreme Court. It aimed to analyze commonly discussed reforms and their potential implications. The report focused on the history of court reform; size and membership; term limits; the court’s role; and procedures and practices.

The commission formed after Biden issued an executive order and nominated Kang and other members in April 2021. Kang has a background in campaign finance, voting rights, redistricting, judicial elections and corporate governance. 

“What we hoped would materialize would be … a very well-considered, good-faith exploration of the issues, and both their potential and their limitations, as well as the legal analysis of it — constitutionality and workability,” Kang said. 

The increased analysis came about because of concern from the political left that Republicans have appointed more justices than Democrats to the Supreme Court, Kang said. Currently, the court comprises six Republican appointments compared to three from Democrats. 

Discussions of court composition became more common during Justice-designate Ketanji Brown Jackson’s nomination, hearings and her eventual April 7 confirmation. 

“There is political pressure from the left to change the court right now, given that it’s part of the composition,” Kang said. “I think the White House felt some need to at least address some of that pressure through a commission, to think about some of these issues and provide some expert analysis on the wisdom of some of those proposals.” 

Commission members could bring research assistants into their “circle of trust,” according to Kang, who selected second-year law students Emma Hlavin, Sierra Anderson and Jordan Krieger. 

The three research assistants helped with background research and “cast a wide net” for information, Hlavin said, covering the topic as thoroughly as possible.

“The report’s findings really emphasize that there are a lot of different ways that the Supreme Court could function and that it is worthwhile to explore those ways and to consider whether there could be a change to be made,” Anderson said. 

The process took place remotely for commission members and research assistants alike because of the pandemic, Kang said. 

Kang and fellow commissioners were required to open some virtual meetings to the public, which he said created a “filter quality.” 

“They were all remote, they were all over Zoom and they were highly regulated in ways that made it hard to reach out less formally to someone and understand what they were thinking about something,” Kang said.

The report covers issues like partisan gridlock and increased power of the courts — which Anderson said are “timely” issues. Previously proposed reforms like a code of ethics, term limits and adjusted size of the court are also addressed. 

Hlavin said the report aims to give Biden and other decision-makers “as much information as is necessary” and make comprehensive information on the Supreme Court more accessible to the general public.

“We’d hoped that it would provide a piece of public education whether our audience was more expert … but also to reach people who are more casual followers, concerned citizens who might not know so much about the Supreme Court,” Kang said. 

The report also addresses the history of reforms and reform debates, going as far back as the U.S. Constitution’s creation. A study of the Supreme Court “would be incomplete” without an understanding of its history, according to the report. 

In recent times, issues surrounding the court have been brought to the limelight, Kang said.

“We ought to recognize the consequences of the fact, which is that there’s going to be real contestation over how the court operates, how judges are picked and whether we ought to do something to change the Supreme Court,” Kang said. 

Email: [email protected]

Twitter: @karapeeler

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