David Levi and I were two of the three former federal judges who served on the Presidential Commission on the Supreme Court. (Nancy Gertner was the other.) David and I co-authored an op-ed that appears in today’s Washington Post explaining our opposition to proposals to expand the size of the court and limit the terms of the justices.
Last week, I joined my fellow commissioners in a unanimous vote to submit the Report to the President. Which is not to say that I support the proposals discussed in the Report. As the Report makes clear, there was much disagreement among the commissioners about the various proposals. For example, as my op-ed with David Levi makes clear, I am opposed to expanding the size of the Court and limiting the terms of the justices.
I approve the motion because the process that created the Report was an extraordinary effort that deserves commendation. The Commission modeled an approach to debate over important issues that is much needed in this polarized moment. I accepted my appointment to the Commission skeptical that the views of the small handful of conservatives on the Commission would be fairly considered. Yet time and again, I found my fellow commissioners to be respectful of my views. They went to great lengths to see that those views were adequately reflected in the Report.
This is not the Report I would have written had I been left to my own devices. I reject the premise of some that the current Supreme Court represents a threat to our democracy. Just the opposite. I celebrate the remarkable success the Supreme Court has achieved in preserving the rule of law. I worry that many of the proposed changes would undermine that vital role. In a moment when some see the Supreme Court as just another partisan battlefield, we must not lose sight of the fact that the justices have played well, though not always perfectly, their part under the Constitution as impartial adjudicators. We must not sacrifice the Supreme Court to partisan impulses. My hope is that those who study this Report will come to the same conclusion. Compromise for the sake of unity is the indispensable ingredient for the success of our democratic republic. The Constitution forces such compromises and assumes respectful argument and reasoned deliberation to achieve them.
Historians have a name for this strand of our national DNA. They call it “civic charity,” and it is in dangerously short supply today. I believe that the way the Commission has worked captures the essence of “civic charity.” In that sense, the Report represents the political dynamic the Constitution demands and without which it cannot succeed. For that, I thank the President for making clear that this is the type of deliberation he expected, the co-chairs of the Commission for demanding the same, and my fellow commissioners for meeting that demand.