# Presidential Commission on the Supreme Court of the United States Final Report/Appendixes

Appendices
Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Establishment.
There is established the Presidential Commission on the Supreme Court of the United States (Commission).
Sec. 2. Membership.
| (a) | The Commission shall be composed of not more than 36 members appointed by the President. |
| (b) | Members of the Commission shall be distinguished constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States (Supreme Court). |
| (c) | The President shall designate two members of the Commission to serve as Co-Chairs. |
Sec. 3. Functions.
| (a) | The Commission shall produce a report for the President that includes the following: |
| | (i) An account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court; |
| | (ii) The historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform; and |
| | (iii) 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. |
| (b) | The Commission shall solicit public comment, including other expert views, to ensure that its work is informed by a broad spectrum of ideas. |
| (c) | The Commission shall submit its report to the President within 180 days of the date of the Commission’s first public meeting. |
* (a) The Office of Administration within the Executive Office of the President shall provide funding and administrative support for the Commission to the extent permitted by law and within existing appropriations. To the extent permitted by law, including the Economy Act (31 U.S.C. 1535), and subject to the availability of appropriations, the General Services Administration shall provide administrative services, including facilities, staff, equipment, and other support services as may be necessary to carry out the objectives of the Commission.
* (b) Members of the Commission shall serve without compensation for their work on the Commission, but shall be allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law for persons serving intermittently in the Government service (5 U.S.C. 5701–5707).
* (c) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (Act), may apply to the Commission, any functions of the President under the Act, except for those in section 6 of the Act, shall be performed by the Administrator of General Services.
Sec. 5. Termination.
The Commission shall terminate 30 days after it submits its report to the President.
Sec. 6. General Provisions.
| (a) Nothing in this order shall be construed to impair or otherwise affect: | (a) Nothing in this order shall be construed to impair or otherwise affect: |
| | (i) the authority granted by law to an executive department or agency, or the head thereof; or |
| | (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. |
| (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. | (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. |
| (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. | (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. |
JOSEPH R. BIDEN JR.
THE WHITE HOUSE, April 9, 2021
President Biden established this Commission on April 9, 2021, by Executive Order 14023. Consistent with the Federal Advisory Committee Act of 1972, Public Law 92-463, 5 U.S.C. App., the Commission held public meetings on May 19, June 30, July 20, October 15, November 19, and December 7, 2021. Recordings and transcripts of those meetings, which include deliberations and statements by Commissioners, are available here (https://www.whitehouse.gov/pcscotus/public-meetings/).
Following its introductory meeting on May 19, the Commission scheduled public hearings on June 30, 2021, and July 20, 2021. Over the course of these two days, the Commission heard oral testimony from 44 experts. The materials circulated for each meeting, the recordings and transcripts of the hearings, and witnesses’ written statements are available for review at www.whitehouse.gov/pcscotus/public-meetings/. The Commission also solicited and received additional written testimony from numerous academic experts and advocacy organizations, available at www.whitehouse.gov/pcscotus/public-comments/.
In addition, the Commission received submissions from several members of Congress, current and retired federal and state judges, and members of state government.
Fifteen days prior to each public meeting, the Commission called for public comments through notices released in the Federal Register. The Commission also established a portal through which members of the general public were able to provide commentary, at regulations.gov, and maintained an email inbox for public commentary.
As discussed at the first public meeting, the Commission divided itself into subcommittees, denominated as “Working Groups,” to consider testimony and comments from outside experts, organizations, and the public, and to further research and analyze the following topics:
* The Genesis of the Reform Debate; the Commission’s Mission; and the History of Reforms
* Membership and Size of the Court
* Length of Service and Turnover of Justices on the Court
* The Court’s Role in the Constitutional System
* The Supreme Court’s Procedures and Practices
​The following individuals or organizations provided oral or written submissions to the Commission:
Witnesses of June 30, 2021
* Nikolas Bowie, Harvard Law School
* Samuel Bray, Notre Dame Law School
* Rosalind Dixon, University of New South Wales, Sydney
* Michael Dreeben, O’Melveny and Myers, LLP
* Noah Feldman, Harvard Law School
* Charles Fried, Harvard Law School
* Deepak Gupta, Gupta Wessler
* Amy Howe, SCOTUSblog
* Laura Kalman, University of California - Santa Barbara
* Allison Orr Larsen, William & Mary Law School
* Michael McConnell, Stanford Law School
* Samuel Moyn, Yale Law School
* Judith Resnik, Yale Law School
* Kim Scheppele, Princeton University
* Maya Sen, Harvard University
* Christina Swarns, Innocence Project
* Stephen Vladeck, University of Texas Austin School of Law
* Russell Wheeler, Brookings Institution
* Ilan Wurman, Arizona State University
Witnesses of July 20, 2021
* Justice Rosalie Abella, Supreme Court of Canada
* Akhil Amar, Yale Law School
* Nan Aron, Alliance for Justice
* Randy Barnett, Georgetown University Law Center
* Craig Becker, AFL-CIO
* Daniel Epps, Washington University in St. Louis
* Kenneth Geller, Mayer Brown, LLP ​
* Tom Ginsburg, University of Chicago
* Jamal Greene, Columbia Law School
* Wade Henderson, The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund
* Vicki Jackson, Harvard Law School
* Christopher Kang, Demand Justice
* Michael Klarman, Harvard Law School
* Larry Kramer, Harvard Law School
* Curt Levey, Committee for Justice
* Marin Levy, Duke University School of Law
* Maureen Mahoney, Latham & Watkins
* John Malcolm, Heritage Foundation
* Justice Margaret Marshall, Choate, Hall & Stewart
* Sharon McGowan, Lambda Legal
* Dennis Parker, National Center for Law and Economic Justice
* Jeff Peck, Tiber Creek Group
* Gabe Roth, Fix the Court
* Stephen Sachs, Harvard Law School
* Ilya Shapiro, Cato Institute
* Neil Siegel, Duke Law School
* Benjamin Wittes, The Brookings Institution
Public Officials
* Senator Richard Blumenthal
* Senator Ted Cruz
* Senator Mazie K. Hirono
* Representative Henry C. “Hank” Johnson, Jr.
* Senator Charles Schumer
* Senator Sheldon Whitehouse
* Jim Jones, former Attorney General and state Supreme Court Justice of Idaho
* Champ Lyons, Supreme Court of Alabama
* Ashley Moody, Attorney General of Florida
* Paul Summers, Attorney General (retired), Tennessee
* Samuel Thumma, Court of Appeals of Arizona
* Galen Vaa, 7th Judicial District, Minnesota
* Aaron Belkin, Take Back the Court
* Philip Bobbitt, Columbia Law School
* Barry Cushman, Notre Dame Law School
* Erin Delaney, Northwestern Pritzker School of Law
* Michael J. Gerhardt, University of North Carolina School of Law
* Edward A. Hartnett, Seton Hall Law School
* Amanda Hollis-Brusky, Pomona College
* David Law, University of Virginia School of Law
* Richard Lazarus, Professor, Harvard Law School
* Hashim M. Mooppan, Jones Day (formerly U.S. Department of Justice)
* Michael Stokes Paulsen, University of St. Thomas School of Law
* William G. Ross, Samford University
* Jeff Shesol, Author
* Christopher Jon Sprigman, New York University School of Law
* Julie Suk, Fordham University School of Law
* Mark Tushnet, Harvard Law School
* G. Edward White, University of Virginia School of Law
Advocacy and Professional Organizations
* American Academy of Arts & Sciences
* American Bar Association
* American Civil Liberties Union (ACLU)
* American Constitution Society
* Appellate Courts Working Group
* Brazil Comparative Law Institute
* Business Roundtable
* Center for American Progress
* Chamber of Commerce of the United States of America
* Coalition Against Judicial Fraud
* Constitutional Accountability Center
* Demos ​
* Federal Bar Association
* Federal Capital Habeas Project
* First Liberty Institute
* FreedomWorks Foundation
* Independent Women’s Forum
* Judicial Discipline Reform
* Keep Nine Coalition
* Lawyers’ Committee for Civil Rights Under Law
* Madison Coalition
* National Asian Pacific American Women's Forum
* National Association for the Advancement of Colored People (NAACP) Legal Defense Fund
* National Center for Law and Economic Justice
* National Council of Jewish Women
* National Federation of Independent Business (NFIB)
* New York County Lawyers Association
* Our Children’s Trust
* People For the American Way
* Project on Government Oversight
* Public Citizen Inc. and Public Citizen Foundation
* Service Employees International Union (SEIU)
* Stand Up America
* Take Back the Court
* The Constitution Project at POGO (Project on Government Oversight)
* The Innocence Project
* Unrig the Courts Coalition
The Commission established a public comment policy that set parameters for the publication of comments received on regulations.gov. Public comments that met this policy were published on regulations.gov (Docket: PCSCOTUS) and can be reviewed there. The published comments expressed a broad array of opinions on the Commission’s work, its draft discussion materials, reform proposals in the public debate, and other related topics.
Comments received by the Commission that did not meet the posted public comment policy were not published. The bulk of unpublished comments fell into two categories: duplicate submissions included in several mass mailing campaigns targeted at the Commission and submissions on topics not within the Commission charge/not relevant.
The table below provides an overview of the public comments received in association with a given public meeting. Deadlines were set out in each public meeting notice as a cut-off for comments prior to each public meeting. The table below is complete up to and including comments received for the 12/7 public meeting (cut-off 12/3). Comments received after this date could not be included in the report due to printing timelines.
Number of comments received by status of publication and public meeting date:
COMMISSION PUBLIC MEETING DATE :
| | 5/19/21 | 6/30/21 | 7/20/21 | 10/15/21 | 11/19/21 | 12/7/21 | Total |
| Comments published on Regulations.gov | 46 | 221 | 163 | 3,556 | 186 | 1,118 | 5,290 |
| Comments not published due to violations of policy | 58 | 2,054 | 429 | 367 | 502 | 50 | 3,460 |
| Total comments received | 104 | 2,275 | 592 | 3,923 | 688 | 1,168 | 8,750 |
​Endnotes: Appendix B
* ↑ Individuals listed provided their title in their public comment or signed, with their name and title, a submission filed by another individual. Additional comments from current or retired government officials may have been received but are not listed here if submissions did not specify their title or office.
* ↑ Published comments from these organizations can be found on https://www.regulations.gov/document/PCSCOTUS-2021-0001-0003/comment
* ↑ All published comments received by the Commission can be found on https://www.regulations.gov/document/PCSCOTUS-2021-0001-0003/comment
* ↑ Source: PCSCOTUS public comment tracker. This tracker contains a record of all received comments through both Regulations.gov and the Commission’s general email inbox.
Executive Order 14023 directed the Commission on the Supreme Court of the United States to produce a report that includes an “account of the contemporary commentary and debate about … the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.” Several witnesses who testified before the Commission noted that recent debates over Supreme Court reform have taken place amidst controversies surrounding the processes by which Justices are nominated and confirmed. The evaluation of proposals for Court reform may thus require both attention to existing problems with the confirmation process and consideration of how a proposal, if implemented, might affect that process.
One witness, Jeffrey J. Peck, who previously served as General Counsel and the Majority Staff Director of the Senate Judiciary Committee, proposed changes to Senate rules and norms designed to improve the confirmation process. These proposals grew out of his examination of the history of the Senate’s treatment of Supreme Court nominees over the last several decades and numerous interviews he conducted with former Senators and senior staff—thirteen Democrats and twelve Republicans. That group included individuals who had been involved in seventeen Supreme Court nominations, from 1981 to the present.
In the Introduction to this Report, we have provided a brief account of contemporary debates surrounding the confirmation process, consistent with our charge. But consideration of proposed reforms to the confirmation process are beyond that charge, and we accordingly do not analyze or endorse any of the recommendations offered to us. Nonetheless, we do wish to highlight some of the analysis and recommendations in the Peck testimony.
In this Appendix, we have included excerpts from Mr. Peck’s testimony. The full testimony is available at the Commission website at https://www.whitehouse.gov/wp-content/uploads/2021/07/Peck-Testimony.pdf
​Excerpts of Testimony of Jeffrey J. Peck The Presidential Commission on the Supreme Court of the United States July 20, 2021
In calendar years, it was not too long ago – 1994, in fact – when Stephen Breyer was confirmed, 87–9. When Ruth Bader Ginsburg was confirmed, 96–3, in 1993. When David Souter was confirmed, 90–9, in 1990. When Anthony Kennedy was confirmed, 97–0, in 1988. When Antonin Scalia was confirmed, 98–0, in 1986. And when Sandra Day O’Connor was confirmed, 99–0, in 1981. Strong bipartisan majorities often prevailed.
In political years, these consensus confirmations reflect a bygone era akin to the locomotive, the Model T and wired telephones. Will any nominee to the highest court in the land ever get 90 votes again? Doubtful, since at present there are likely to be at least 25 negative votes before hearings begin, regardless of which party controls the White House and the Senate; indeed, there may be that many automatic negative votes before a nomination is even announced!
During the past few months, I conducted 25 interviews -- 13 Republicans and 12 Democrats, thereby ensuring that both sides of the political spectrum were fairly represented. All respondents served in the Senate as Senators or senior staff, typically as committee chief counsels, staff directors, senior nomination counsels or senior leadership staff. Time constraints and respondent availability limited the overall number…My objective was to speak with individuals spanning as broad a range of nominations as possible to secure bipartisan perspectives from multiple political eras. Accordingly, the responses discussed herein cover 17 nominations between Sandra Day O’Connor (1981) and Amy Coney Barrett (2020)…
As detailed therein, I covered eight areas with all interviewees.
* Biographical Information
* General Observations
* The Senate’s Advice Function
* Role of the Senate Judiciary Committee
* Scope of Questioning ​
* The FBI Report
* Third Party Witnesses
* The Senate’s Consent Function: Filibuster, Margins and Presidential Election Year Nominations
Most interviewees believe that the value of SCOTUS nomination hearings has increasingly diminished over time. Common descriptions included “kabuki theater,” “farce,” “charade,” “circus,” “a model of escape and evasion” and “insufferable.” Anyone who has watched recent hearings would be hard pressed to disagree. Given the extreme reluctance of nominees, questioning by Senators has become tedious and uninformative. One interviewee noted that Senate questioning has become “air cover for some to justify a negative vote they have already decided to make.”
There was consensus among all interviewees that it is not feasible to develop hard-and-fast formal rules regarding the questioning of SCOTUS nominees. Among other problems, such rules would turn the Judiciary Committee chair into a faux judge obligated to decide on the relevance, materiality and scope of his or her colleagues’ questions – inevitably a “lose–lose” proposition for the Chair, as one interviewee put it. It would also, as another interviewee noted, invade the “holy province of senatorial desire” to ask any questions he or she wants to pose.
A small number of Democrat interviewees and one Republican interviewee supported the view that nominees should answer questions about how they would have ruled in specific past Supreme Court decisions. These interviewees dismissed the notion that outside groups would use these answers to politicize the process even further, noting that the groups already assume that nominees embrace particular views and act on those assumptions accordingly. The Republican interviewee in this group supported this level of specificity based on his view that future cases involved different facts and thereby do not compromise a nominee’s judicial independence. Moreover, this interviewee believes that the public is entitled to know a nominee’s views and that Senators, with such information, can then vote based on the totality of the nominee’s record.
Two Democrat interviewees and one Republican interviewee support specific questioning but stop short of asking about how a nominee would have voted in past cases. The Republican interviewee noted the appropriateness of asking a nominee, “Had you been on the Court in ​1973 and had the Roe factual record before you, how would you have approached the case,” distinguishing that question from a precise question about how the nominee would have voted.
Approximately 15 interviewees – both Democrats and Republicans – support questions about the “general philosophy of judging.” They believe it is appropriate to ask questions about what nominees have written but oppose questions regarding how nominees would have ruled in specific past cases decided by the Court. For nominees who are or have previously been judges, these interviewees also support asking them about their reasoning in cases they have decided.
Several Republican interviewees referred approvingly to the so-called “Ginsburg Rule,” noting that should be the model for all future nominees.
One issue that arose during my research was whether to allow each Member of the Judiciary Committee to submit a defined number of written questions to the nominee before the hearings commence, with answers due before the nominee appears in person. The argument in favor of such an approach is that the nominee’s testimony would then follow an enhanced record. The problem with such an approach is that if history is any guide, the answers are likely to be written by White House Counsel lawyers, Department of Justice lawyers, outside lawyers (such as former law clerks) supporting the nominee or some combination thereof. While rules could require the nominee to attest to the accuracy of the answers and the fact that they reflect the nominee’s actual views, it would be difficult, if not impossible, to police their actual preparation.
One GOP interviewee proposed limiting the questioning of nominees in open session to one round, no longer than 30 minutes, with the remainder of the questioning occurred in closed session to “produce less grandstanding.”
I offer the following recommendations to the Commission.
I. Time Frames: By Standing Rule of the Senate or Rule of Procedure of the Senate Judiciary Committee, the following time frames and procedures should be adopted and implemented:
| a) | Hearings shall commence no sooner than 30 days and no later than 50 days after the Senate receives the nomination. If the nomination is made during a Senate recess that ​is longer than three days, the minimum and maximum periods shall be extended by the length of the recess. |
| b) | The nominee’s complete written record shall be delivered to the Committee no later than 10 days before hearings begin. Delays in the production of materials shall extend the minimum and maximum periods by the length of the delay, thereby penalizing the nominating Administration for dragging its feet. The White House Counsel shall certify when production of materials has been completed. |
| c) | The Committee shall vote on the nomination no sooner than 10 days and no later than 21 days after hearings conclude. The “official” conclusion of the hearings shall be determined by the Chair and Ranking Member; any “gaming” of the hearings for the sole purpose of extending the time frames should be avoided. The current ability of one Senator to “hold over” a nomination shall be eliminated. |
| d) | The Committee shall be required to report the nomination to the floor in all circumstances – even with a negative recommendation or without recommendation. The Constitution places the advice and consent obligation on the Senate, not a committee of the Senate. The Judiciary Committee processes the nomination by holding hearings, preparing a report and reporting the nomination to the Senate. It should not determine the fate of the nominee. |
| e) | The full Senate shall begin consideration of the nomination no sooner than 10 days and no later than 21 days after the Committee formally files its report on the nomination. The Senate can delay consideration only by unanimous consent. |
| f) | The time frames in this new Rule could be shortened or lengthened “for cause” by joint agreement of the Judiciary Committee’s Chair and Ranking Member. “Cause” includes, but is not limited to, a voluminous record of the nominee due to extensive writings, speeches or opinions, the need for investigation of new matters and/or if additional relevant materials are uncovered. |
| g) | These timeframes shall apply under all circumstances, including nominations in a presidential election year up to August 1 of that year, as explained below. |
| h) | These new Rules could be altered only by unanimous consent of the Senate in order to eliminate the ability of the majority party to jettison the new policies for political expediency by simple majority vote. |
| i) | These new Rules are needed now and, ideally, should be adopted and implemented immediately. Unfortunately, there is little or no chance of that occurring. Accordingly, the new Rules proposed here shall not take effect until after the next presidential election and not until the swearing in of the new Congress in January 2025. Postponing the effective date of new rules should reduce the partisanship over their deliberation and increase the likelihood of adoption because neither party would know who the rules theoretically help, and who they theoretically hurt, by the time they go into effect. |
| a) | To make an informed decision and fulfill their constitutional obligation and duty to exercise “advice and consent” on judicial nominations, Senators must understand the nominee’s judicial philosophy and views on core constitutional principles. |
| b) | The so-called “Ginsburg Rule” cited by recent nominees is neither a rule nor an appropriate tactic to utilize to deflect substantively appropriate questions. Indeed, then Judge Ginsburg did not always follow it during her hearings. |
| c) | When presidents campaign on promises regarding the justices they will appoint to the Supreme Court, criticizing past rulings and individual Justices – as they increasingly do – the Senate can hardly sit idly by during the hearings and not probe the judicial philosophy of nominees selected to fulfill those promises and answer those critiques. Indeed, the imperative to question nominees on judicial philosophy is even greater under such circumstances. |
III. The Role of the FBI: Processes pertaining to the FBI’s investigation of SCOTUS nominees should be further clarified and memorialized in a Memorandum of Understanding that updates and replaces the 2009 MOU executed by President Obama’s White House Counsel and the then Senate Judiciary Committee Chair and Ranking Member. This MOU should be adopted at the beginning of a new Congress so that it is done outside the context of any particular nomination, and should:
| a) | Underscore and memorialize the independence of the FBI, stating specifically that the FBI’s client is the American people. It is important to make clear, formally, that when the FBI conducts its investigations neither the White House Counsel nor the Senate Judiciary Committee majority or minority are the clients. |
| b) | Create communication protocols governing the FBI’s dialogue with the White House and the Chair/Ranking Member of the Judiciary Committee so that each of those three parties receives information simultaneously when the FBI has determined that a matter warrants investigation. It is necessary to take steps ensuring neither receives preferential treatment over the other. |
| c) | Spell out the parameters of the FBI’s role in conducting the background investigation before the hearings begin and any subsequent investigations that arise once the hearings have started. Specifically, and working with FBI leadership, the MOU should require ​a more fulsome investigative process at the outset so matters that have historically come to light later in the process are more likely to be uncovered on the front end. |
| d) | Set an expected time frame for the delivery of the FBI report for the original investigation and any subsequent investigations, with room for potential adjustments depending on the precise nature of allegations that arise. |
IV. Third Party Witnesses: Qualitative or quantitative limits on the live testimony of third-party witnesses should not be established by rule.
| a) | The Supreme Court plays a vital role in our nation and third-party witnesses should have the opportunity not only to submit written statements for the record but also testify in person. |
| b) | A norm should be established whereby the majority of outside witnesses should provide well-informed assessments of the record of the nominee. |
| c) | The Chair and Ranking Member should utilize their joint discretion, as they do in all hearings, to manage the number of witnesses. |
| d) | The American Bar Association should no longer play the dominant role it has in reviewing nominees. The Committee should place equal weight on multiple bar associations without affording a lead role to any single one. |
V. Senate Consideration and Vote on Confirmation: If we had the good fortune to write on a blank slate, Senate Rules should require 60 votes to confirm a Supreme Court Justice in order to force, at least in most circumstances, a bipartisan consensus not only on the back end, for the final vote, but also on the front end, by necessitating more consultation by the president with the minority party leadership in the Senate. But the slate is not blank; far from it. It is inconceivable that Democrats will restore a 60-vote margin for SCOTUS nominees after a Republican president and Republican Senate confirmed one-third of the Justices sitting today by majority vote. Bipartisan consensus on this issue is simply not attainable. Accordingly, I recommend:
| a) | The Senate should retain the current simple majority requirement for confirming Supreme Court nominees. |
| b) | The Senate should add a new Rule explicitly requiring that all nominees receive a Senate Judiciary Committee hearing, a Committee vote and an up-or-down vote on the merits in the Senate. No nominee should be refused consideration unless the nomination has been withdrawn. |
| c) | The Senate should consider all nominations in a presidential election year except for those made after August 1. Nominations before August 1 are likely to be completed prior to Election Day in a balanced and orderly manner. Given the time frames proposed for new Rules guiding the Judiciary Committee’s consideration, nominations after August 1 are not likely to be considered thoroughly and fairly before the American people select the next president. Key steps by the Administration and the Senate – including document production, requests for more investigative work by the FBI, ​number of third-party witnesses and the like – are more likely to be colored by politics and game-playing when taking place within 90 days of a presidential election. Fairness and responsible decision-making will ensue when presidential politics is not the main driver. |
| d) | Using August 1 as a cut-off date in a presidential election year also takes into account the early voting – either by mail or in-person – that many states now allow. There are few more consequential decisions made in in our nation than placing one of nine Justices with life tenure on the Supreme Court. Doing so while tens of millions of Americans are voicing their preference about the next president is anti-democratic. |
| e) | Despite the August 1 cut-off date, any Senator who believes nominations made before that date in a presidential election year are still too close to Election Day can vote against the nomination solely for that reason. |
| f) | While not likely feasible to implement by Senate rule, the two parties should share an understanding that nominations made by a lame duck president after his or her defeat on Election Day will not be considered. |
​Endnotes: Appendix C
* ↑ I am not presenting my findings as empirical research or necessarily consistent with scientifically accepted statistical methodology. The goal was to solicit opinions through a standardized set of questions, with answers informed by personal experience, which, in all cases, was extensive.
* ↑ Since my views as a Democrat are also included in this report, the total number of interviewees was, in effect, equally split.
* ↑ Each potential reform area is discussed later in detail, and organized and presented in three sections: Relevant Historical Background and Context; Results of Research; and Policy Recommendations. The relevant historical background sections are not intended to be exhaustive.
The Commission received testimony from several witnesses about the sources of advocacy and information provided to the Supreme Court as it selects and decides cases. Their testimony addressed patterns in advocacy before the Court, including the fact that a small group of specialized lawyers appears in a large proportion of cases. It also addressed the role of interested non-parties, called amici curiae, in providing information to the Court beyond the parties’ briefs and the record in a given case. These analyses focused on the conduct and characteristics of advocates and amici rather than of the Court itself. We do not endorse this testimony or the proposals contained within it. But we believe it would be informative for the public discourse for this Report to highlight portions of the testimony.
The witnesses whose statements are excerpted here are Deepak Gupta; the Supreme Court Practitioners’ Committee, chaired by Kenneth Geller and Maureen Mahoney; Richard Lazarus; and Allison Orr Larsen. Their full testimony, respectively, is available on the Commission website at the links noted below.
Excerpts from Testimony of Deepak Gupta, Gupta Wessler PLLC
https://www.whitehouse.gov/wp-content/uploads/2021/06/Gupta-SCOTUS-CommissionTestimony-Final.pdf
The Diversity of the Supreme Court Bar
Today, roughly 70 lawyers are considered part of the elite Supreme Court bar, filing less than 1% of the petitions for certiorari before the Court but participating in nearly half the cases the Court selects.
The demographics of these elite few are telling. From 2012 to 2018, women appearing before the Court constituted only 12 to 21% of advocates. In the 2019 term, 155 oral argument appearances were made before the Court, only twenty of which were made by women and only twenty-seven of which were made by advocates of color. In the entire 2019 term, only one woman of color appeared before the Court.
In other words, the entire ecosystem surrounding the Court looks a lot less like the American public than we might hope. For the development of the law, this limited diversity can make the Court “woefully inattentive to its impact on underrepresented groups.” And on the most basic level, as this small and elite institution makes laws for a large and diverse country, many Americans do not see people like them regularly participate in the process.
Docket Capture
Homogeneity among Supreme Court advocates is by no means limited to race and gender. The small handful of elite appellate lawyers who argue most cases before the Supreme Court are not only overwhelmingly white and male—they also tend to represent the largest corporations in the world. Attorneys at corporate-defense firms are often conflicted out of representing plaintiffs, even if they would be inclined to do so otherwise.
This imbalance in the small group of advocates who have the ear of the Court has serious consequences for the Court’s agenda and the public’s perception that the Court gives each party before it an equal hearing. In turn, the stakes for the country are high: not just the rights of workers, consumers, and other plaintiffs, but also the credibility and legitimacy of the Court in the eyes of a public that already believes their government is overly aligned with the interests of large corporations.
… The influence of corporate America in the Supreme Court is borne out by the dominance of specialized “repeat players.” As Professor Richard Lazarus has written, the 1980 term saw 5.8% of cases argued by attorneys who have presented at least five cases before the Supreme Court, or who were affiliated with law firms whose members had argued at least ten. By 2007, the percentage of Supreme Court cases argued by such “expert advocates” had passed 50%. For the past several years, it has hovered around 70%. Hiring one of these advocates is especially useful at the cert stage, and, since the 1980’s, the success of cert petitions filed by specialized private appellate practices has skyrocketed. In 1980, 5% of successful petitions (excluding the Solicitor General’s) were filed by repeat player advocates. By 2007, that rate had increased to more than 50%. Unsurprisingly, these advocates’ corporate clients benefit from their success. The past few decades are replete with examples of the Court granting ​review to corporate-friendly petitions that it would have likely passed over if not for an expert advocate’s name on the industry-side brief.
These elite lawyers’ “capture” of the Supreme Court docket, as Professor Lazarus has put it, has real consequences for workers, consumers, and other plaintiffs who have been hurt by corporations, as well as for criminal defendants. For one, judges and attorneys widely agree that hiring specialized appellate counsel—especially one particularly familiar with the Court—matters for a favorable outcome. In a 2004 survey of former Supreme Court clerks, 88% said they “len[t] additional consideration” to amicus briefs signed by an eminent repeat player. Empirical studies have linked attorney experience with case outcomes as well. A study by Professor Jeffrey Fisher, for example, found that a party represented in the Supreme Court is almost 20% more likely to win on the merits than one represented by a nonspecialist—and that the advantage at the certiorari stage is likely even larger. A 2014 investigation found that over a decade, just 66 of the 17,000 attorneys who filed petitions at the Supreme Court accounted for 43% of the cases the Court took up, and 51 of those lawyers represented corporate interests. An increase in cert petitions, combined with a shrinking merits docket, has made the involvement of repeat players in petitioning the Court especially valuable…
The access that plaintiffs, criminal defendants, and other public-interest clients have to this specialized group of repeat players is severely limited. For one, corporate-defense firms routinely charge more than $1,000 per hour for their services, and a single cert petition can cost a client hundreds of thousands of dollars. Even if attorneys at high-powered appellate practices have some inclination to take on plaintiff-side work, they often will not due to the fact that their firms represent the corporations, or at least the antiplaintiff positions, on the other side of the case. The Chamber of Commerce and other influential industry groups—not to mention many of the largest corporations in the country themselves—have hired most of the firms with elite appellate practices, making it difficult or impossible for attorneys at those firms to represent contrary interests and positions. Some might reasonably suggest that the rise of excellent law school supreme court clinics mitigates this problem, but, unfortunately, that is not the case. Virtually all of those clinics are affiliated with the very same corporate-defense law firms that employ the expert Supreme Court advocates, making it difficult for the clinics to take a position against, for example, a major bank in a case concerning financial services regulation.
Mitigating Corporate Skew in the Supreme Court Bar
Given this landscape, the government, starting with this Commission and this White House, can and should encourage the development of specialized public-interest and plaintiffs’ lawyers—first and foremost by advocating for increased funding to organizations that do this appellate work. To start, Legal Aid organizations around the country provide invaluable services to low-income people in the areas of housing, employment, immigration, criminal justice, public benefits, and more. A few Legal Aid offices—but only a few—have developed small appellate practices. Similarly, some public defender offices have small appellate divisions. More funding for these offices would strengthen the legal representation of low-income and other marginalized people in general—a worthy goal in its own right—but it could also facilitate the development of a larger, more experienced public-interest appellate bar. Just as corporate law firms and the Solicitor General’s office do for most prominent appellate lawyers now, better-funded Legal Aid and Public Defender offices could create the kinds of opportunities for training, specialization, and, eventually, repeat advocacy for career publicinterest lawyers.
Excerpts from Testimony of Supreme Court Practitioners’ Committee (Co-Chairs Kenneth Geller, Mayer Brown LLP; Maureen Mahoney, Latham & Watkins LLP)
https://www.whitehouse.gov/wp-content/uploads/2021/07/Geller-Mahoney-Testimony.pdf
Diversifying the Group of Appointed Amicus Counsel
Since 1926, the Supreme Court has appointed counsel as amicus curiae approximately 70 times, with an average of one or two per year. Unlike traditional amici, appointed amici are instructed by the Court to take a particular position and to present oral argument. Of the approximately 70 amicus counsel appointments to date, it appears that only seven advocates have been women and only four have been people of color. Appointments have been heavily skewed toward former law clerks.
Commentators have suggested various means of broadening the group of attorneys considered for appointment by creating an application process, promulgating qualification ​criteria, or issuing general invitations for amicus briefing on issues and selecting one responding amicus to argue.
The Committee does not endorse prescribing a public standard for appointments, but we support continued expansion of the group to which the Court looks for appointments. In particular, greater diversity likely would result if consideration were given to more attorneys who are not former law clerks, especially advocates in the specialized appellate bars of state courts and other federal courts and law professors.
Criminal Defense Cases
Some of the best advocates before the Supreme Court are criminal defense attorneys, especially in the specialized capital defense bar. But the attorneys in the criminal defense bar generally have fewer resources to support specialized Supreme Court litigation than do their prosecutor counterparts. Government prosecutors also have more strategic flexibility about which issues to litigate in a case, whereas criminal defense attorneys have an ethical duty to zealously represent the interests of their individual client whose personal liberty is at stake. And prosecutors collaborate extensively with each other through organizations like the National Association of Attorneys General, and often support each other as amicus curiae, but such resources are much more limited on the criminal defense side.
The imbalance would be better addressed through federal and state legislative appropriation of increased resources to develop more Supreme Court specialization within the criminal defense bar in state and federal public defender offices and through greater collaboration with Supreme Court specialists in clinics and pro bono partnerships.
​Excerpts from Written Statement of Richard Lazarus, Harvard Law School
https://www.whitehouse.gov/wp-content/uploads/2021/08/Professor-Richard-Lazarus.pdf
The Distinct Importance of the Court’s Jurisdictional Determination
… The Court’s decision at the jurisdictional stage that a particular case warrants plenary review is … one of the most consequential rulings that the Court makes. Yet, as the number of petitions has significantly increased over time, the Court’s resources to identify which cases warrant full briefing and argument have necessarily been stretched increasingly thin and, as a result, increasingly susceptible to be unduly influenced by expert members of the Supreme Court Bar.
I have no comparable concern relating to the Court’s decision-making process for those cases granted plenary review. Especially now that the Court decides only sixty to eighty cases a year, the Justices and their chambers have ample time to immerse themselves fully into those cases and potentially make up for any possible deficits in the advocacy in any specific case. Advocacy deficits are also effectively addressed in most cases that the Court has decided to review with full briefing and oral argument by the sheer number of amicus briefs filed these days in those merits cases, many of which are crafted by outstanding lawyers on all sides of a case. My concern is instead limited to the jurisdictional stage, where mismatches in the advocacy skills of the competing parties favoring and opposing review are likely to be present and the Court lacks the time and resources to make up for the difference. It is at the jurisdictional stage, not the merits stage, that the Court is most vulnerable.
The Deficiencies in the Court’s Current Internal Processes at the Jurisdictional Stage
The Court currently considers between five and six thousand petitions each year and, as described above, grants review in about sixty to eighty cases. Although the Justices themselves plainly commit significant time to deciding—based on full briefing and the merits, oral argument, and circulation of draft opinions—those cases in which review is granted, it is an open secret that the individual Justices spend relatively little time reviewing individual petitions at the jurisdictional stage. To be sure, the Justices are the ones who formally vote on the question whether review is warranted but given the thousands of petitions to be considered and all of their other responsibilities, especially deciding the cases granted review, the Justices themselves spend no time at all on the vast majority of cert petitions and only minutes even ​on those relatively few petitions in which review is seriously considered. The Justices instead must, as they do, depend heavily on their law clerks to identify which cases warrant the Court’s attention.
As a result, the law clerks and, accordingly, the Justices, are highly dependent at the jurisdictional stage on the quality of the advocacy reflected in the petition for a writ of certiorari seeking review, amicus briefs filed in support of the petition, and those in any briefs opposed to review. And, most simply put, as good as those law clerks are, they are no match at the jurisdictional stage when time is so limited for the nation’s most skilled Supreme Court advocates. The latter, many of whom were once themselves Supreme Court law clerks but are now seasoned Supreme Court lawyers with years and decades of experience, know precisely how to pitch cases both to persuade a law clerk that a case is worthy of the Court’s review when it is not, and to persuade the clerks that a case is not worthy of review, when it is.
Were the assistance of the most skilled Supreme Court advocates equally available to all persons, especially our society’s most vulnerable, their potential for outsized influence would neither be realized nor a problem. The Justices and their chambers would always have the advantage of exceedingly able lawyers on all sides of a case. In many cases, with the modern rise of the expert Supreme Court Bar during the past four decades, that is now true for the cases the Court decides after full briefing and oral argument. That development is very much a good thing. But it is not true at the jurisdictional stage which is both why the Court remains particularly vulnerable to undue influence by certain advocates and reform of the Court’s procedures is warranted.
Until relatively recently, the problem of skewed advocacy expertise was less concerning because so few attorneys possessed it outside of the Office of the Solicitor General of the U.S. Department of Justice…
Until the late 1980s, the Office of the Solicitor General enjoyed the equivalent of a monopoly on such expertise, but the emergence of a modern Supreme Court Bar has since dramatically changed that dynamic, and a handful of national law firms now fairly boast of highly skilled and successful Supreme Court practices frequently staffed by veterans of the ​Solicitor General’s Office and former Supreme Court law clerks. They match, and sometimes even best the Solicitor General’s Office in the depth and breadth of their advocacy expertise. Year after year, they now dominate the cases the Court decides to hear at the jurisdictional stage and disproportionately employ the attorneys who file the briefs and present oral argument on the merits.
Nor does the significant pro bono work many of those same law firms commendably engage in effectively close the advocacy gap. Such work is necessarily both secondary to their need to earn profits and limited by the professional requirement that they avoid any formal conflicts of interests with their paying clients as well as by the practical need to avoid taking on pro bono causes that might upset their business clients that pay full freight for legal representation. Consequently, it is the business interests that can afford to pay their high billable rates that have greatest access to their expertise.
To be sure, a few public interest organizations, such as the NAACP Legal Defense Fund, Public Citizen, and the American Civil Liberties Union, can fairly boast of impressive Supreme Court expertise. Their representation, however, is as a practical matter still very limited in its reach at the Court’s jurisdictional stage and many parties, such as non-white-collar defendants in federal and state criminal defendants, lack the distinct advantage of their assistance. As a result, potentially successful cert petitions representing those parties are either not filed at all or, if filed, poorly executed. And petitions filed by government prosecutors drafted by expert Supreme Court counsel in the U.S. Solicitor General’s Office, or their counterparts in many States, are granted, even though an effective opposition to the petition might well have resulted in a denial of review instead.
The Proposed Addition of a Career Staff Attorney Office at the Court
My reform proposal for the Commission’s consideration is a modest one that does not purport to address the more serious and pervasive underlying problem of the profound lack of effective legal representation of the nation’s most vulnerable populations. Consistent with the Commission’s charge, my proposal is instead narrowly aimed at improving the internal decisionmaking process that the Supreme Court uses to identify the cases it determines warrant its plenary review. Although a significant problem, it is also one that I believe can be effectively addressed in a relatively simple way and at relatively little cost.
The Court should hire a staff of career attorneys whose exclusive responsibility would be to provide the Court with assistance in deciding which cases warrant the Court’s review. The ​office would be staffed by seasoned, highly accomplished attorneys with significant experience in appellate and Supreme Court advocacy. Following general guidance provided by the Justices, these staff attorneys would review the petitions in the first instance, identify those petitions warranting closer attention by the Justices and their law clerks, and write up memoranda for their consideration in deciding whether review should be granted. The staff attorneys would possess both the time and the years of professional experience that the law clerks currently lack in evaluating the cert petitions. That would include, when needed, reading closely the briefs, the cited authorities, the lower court opinions, identifying how expert counsel may be overreaching in their framing of the case, and otherwise making up for gaps in advocacy. But also important, the staff attorneys would, as now, leave the final decisions to the Justices, assisted by their clerks as each Justice sees fit.
Testimony of Allison Orr Larsen, William & Mary Law School
https://www.whitehouse.gov/wp-content/uploads/2021/06/Larsen-Testimony-PresidentialCommission-on-the-Supreme-Court.pdf.
An Amicus Boom
Amicus briefs are on the rise. Ninety-eight percent of Supreme Court cases now have amicus filings; over 800 briefs are filed each term and the marquee cases attract briefs in the triple digits. This is an 800% increase from the 1950s and a 95% increase from 1995. To put things in perspective historically, amici averaged roughly one brief per case in the 1950s and about five briefs per case in the 1990s. By contrast, in the 2015 Obergefell case the number of amicus briefs reached 147 (a record-breaker) and the health care case two years earlier (NFIB v. Sebelius) had 136 amicus briefs on the docket. For the sake of comparison, consider that Roe v. Wade had twenty-three amicus briefs. In Brown v. Board of Education, there were only six. In Lochner v. New York that number was zero.
Perhaps it is not surprising, therefore, that the Justices cite these briefs to support their factual claims … increasingly regularly. In my 2014 study on the subject I found that one in every five citations to amicus briefs by the Justices were used to support a factual assertion. The Justices seem to have only picked up the pace since then. A 2020 study of amicus citations found citations to amici in 65 percent of the Court’s cases (a record), and “most of all” the ​justices relied on briefs that “provided real world information.” Of the citations I studied, several surprising patterns emerge. Less than a third of the factual claims presented by amici and credited by the Court were contested by the party briefs. And more than two-thirds of the time, the Justice citing the amicus brief for a fact cites only the amicus brief as authority—not any accompanying study or journal citation from within the brief. The implication from this omission is telling: the Justices are using these briefs as more than a research tool. The briefs themselves are the factual authorities, and the amici are the experts.
The Trouble with Amicus Facts
Nowhere outside the Supreme Court do we see this widespread eleventh-hour supplementation of the factual record from sources that are not subject to cross-examination or other checks on reliability. The fact that the U.S. Supreme Court is unique in educating itself about the world in this way should give us significant pause. Unlike other legal decision makers (i.e., administrative agencies and trial courts), the U.S. Supreme Court is not set up to sort through what is now a sea of factual claims coming from a variety of actors who all claim to be experts. Mistakes are almost inevitable.
The studies, statistics, and articles marshaled by these groups to support factual assertions are selected by those with a “dog in the fight.” The factual sources are chosen by amici, in other words, for reasons other than that they are the industry standard, the most peer-reviewed, or the most accurate state of our knowledge today. Rather they are chosen as part of a coordinated plan to win the day. And with the vast amount of information and studies available online now, it is not hard to assemble evidence – whether of dubious or strong reliability – to support a pre-existing point of view. Because the secret is out that the Justices value briefs that supplement their technical knowledge, many amicus briefs stretch to make factual claims – even if it is beyond their institutional capacity to do so.
To date, the standard response to questions about “junk science” ending up in Supreme Court opinions is to resort to the adversary process. While that may have been enough in a pre-Internet universe, it is insufficient today. My research shows that the check from the adversary system at the Court is very feeble to the point of being almost non-existent. In both my 2014 published study and my 2018 update I went through each of the factual claims ​supported by an amicus and cross-referenced the party briefs to see if they were contested by the parties. Such a check existed in less than a third of the citations for the 2014 study and less than 10% of the citations for the more modern time period. The number of amicus briefs filed and the amount of seemingly legitimate information available to present makes it very unlikely that a litigant can adequately respond to amici-presented factual claims.
One possible reform involves increased disclosure rules on amici so that the Justices are fully aware of the source of the information they are digesting… If the Justices are blind to the actual funders of the amici then they have no way to evaluate critically the factual submissions coming from them. Current Supreme Court rules on amicus briefs require a statement of interest of the amicus and disclosure only as to whether the party contributed financially or otherwise to the brief. The rules do not bar anonymously-funded amicus briefs and they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).
Disclosure rules on amicus briefs can take many forms and still be effective. One possibility (borrowed from Daubert and the rules of evidence) is for the Court to require any amicus brief filed with factual claims to include an explanation of the methods used to discover them… The Court could easily impose even minor variations of this reform. It could, for example, require that any statement of fact in an amicus brief be supported by data that is publicly available (not “on file with” the author). Or, the Court could require disclosure when an amicus (or a related group) funds or authors a study purporting to establish a factual claim… Alternatively, the Supreme Court Rules could create a limited way for the parties to respond to unreliability in factual claims. The Court could permit a limited letter at the end of the amicus submissions in which the parties can respond—not to legal arguments—but only to instances where they think the amicus has relied on a shaky authority for a claim of fact.
​Endnotes: Appendix D
Michelle Adams
    Michelle Adams is a Professor of Law at Benjamin N. Cardozo School of Law, where she teaches Constitutional Law, Federal Courts, and Federal Civil Rights. At Cardozo, she is a Director of the Floersheimer Center for Constitutional Democracy and was a Board Member of the Innocence Project. Adams has published in the Yale Law Journal, the California Law Review, and the Texas Law Review. She recently appeared in “Amend: The Fight for America,” a 2021 Netflix documentary about the 14th Amendment. She is the author of The Containment: Detroit, The Supreme Court, and the Battle for Racial Justice in the North, forthcoming from Farrar, Straus and Giroux. Previously, she was a Law Professor at Seton Hall Law School, practiced law at the Legal Aid Society, and served as a Law Clerk for Magistrate Judge James C. Francis IV in the Southern District of New York. Adams holds a B.A. from Brown University, a J.D. from City University of New York Law School, and an LL.M. from Harvard Law School, where she was the first Charles Hamilton Houston Scholar. She is a two-time recipient of Cardozo’s Faculty Inspire Award.
Kate Andrias (Rapporteur)
    Kate Andrias is a Professor of Law at Columbia Law School. She teaches and writes about constitutional law, labor and employment law, and administrative law, with a focus on problems of economic and political inequality. Her work has been published in numerous books and journals, including the Harvard Law Review, the NYU Law Review, the Supreme Court Review, and the Yale Law Journal. In 2016, Andrias was the recipient of Michigan Law School’s L. Hart Wright Award for Excellence in Teaching. Andrias previously served as special assistant and associate counsel to President Obama, and as chief of staff of the White House Counsel’s Office. A graduate of Yale Law School, she clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court and the Hon. Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Jack M. Balkin
    Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression, and the Knight Law and Media Program at Yale. Balkin is a member of the American Law Institute and the American Academy of Arts and Sciences, and founded and edits the group blog Balkinization. His most recent books include ​The Cycles of Constitutional Time, Democracy and Dysfunction (with Sanford Levinson), Processes of Constitutional Decisionmaking (7th ed. with Brest, Levinson, Amar, and Siegel), Living Originalism, and Constitutional Redemption: Political Faith in an Unjust World.
Bob Bauer (Co-Chair)
    Bob Bauer is Professor of Practice and Distinguished Scholar in Residence at the New York University School of Law and Co-Director of NYU Law’s Legislative and Regulatory Process Clinic. Bauer served as White House Counsel to President Obama from 2009 to 2011. In 2013, the President named him to be Co-Chair of the Presidential Commission on Election Administration. He is co-author with Jack Goldsmith of After Trump: Reconstructing the Presidency (2020), books on federal campaign finance and numerous articles on law and politics for legal periodicals. He has co-authored numerous bipartisan reports on policy and legal reform, including “The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration” (Presidential Commission on Election Administration, 2014); “The State of Campaign Finance in the United States” (Bipartisan Policy Center, 2018); and “Democratizing the Debates” (Annenberg Working Group on Presidential Campaign Debate Reform, 2015); ; He is a Contributing Editor of Lawfare and has published opinion pieces on constitutional and political law issues in The New York Times, The Washington Post, and The Atlantic, among other publications.
William Baude
    William Baude is a Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School, where he teaches federal courts, constitutional law, conflicts of law, and elements of the law. His most recent articles include Adjudication Outside Article III, and Is Quasi-Judicial Immunity Qualified Immunity? He is also the co-editor of the textbook, The Constitution of the United States, and an Affiliated Scholar at the Center for the Study of Constitutional Originalism. He is a graduate of the University of Chicago and the Yale Law School, and a former clerk for then-Judge Michael McConnell and Chief Justice John Roberts.
Elise Boddie
    Elise Boddie is a Professor of Law, Henry Rutgers Professor, and Judge Robert L. Carter Scholar at Rutgers University. An award-winning scholar, Boddie teaches and writes about constitutional law and civil rights and has published in leading law reviews. Her commentary has appeared multiple times in The New York Times, as well as in The Washington Post, among other national news outlets. Boddie has served on the national board of the American Constitution Society and the board of the New Jersey Institute for Social Justice and is the ​founder and director of The Inclusion Project at Rutgers. Before joining the Rutgers faculty, Boddie was Director of Litigation for the NAACP Legal Defense & Educational Fund, Inc. and supervised its nationwide litigation program, including its advocacy in several major U.S. Supreme Court cases. An honors graduate of Harvard Law School and Yale, she also holds a master’s degree in public policy from the Harvard Kennedy School of Government. Boddie clerked for Judge Robert L. Carter in the Southern District of New York. She is a member of the American Law Institute and an American Bar Foundation Fellow. In 2016, Rutgers University President Barchi appointed Boddie a Henry Rutgers Professor in recognition of her scholarship, teaching, and service. In 2021, Boddie was named the founding Newark Director of Rutgers University’s Institute for the Study of Global Racial Justice.
Guy-Uriel E. Charles
    Guy-Uriel E. Charles is the inaugural Charles J. Ogletree Jr. Professor of Law at Harvard Law School. He writes about the relationship between law and political power and law’s role in addressing racial subordination. He teaches courses on civil procedure; election law; constitutional law; race and law; legislation and statutory interpretation; law, economics, and politics; and law, identity, and politics. He is currently working on a book, with Luis Fuentes-Rohwer, on the past and future of voting rights, under contract with Cambridge University Press. He is also co-editing, with Aziza Ahmed, a handbook entitled Race, Racism, and the Law, under contract with Edward Elgar Publishing. This book will survey the current state of research on race and the law in the United States and aims to influence the intellectual agenda of the field. He clerked on the Sixth Circuit for the late Judge Damon J. Keith. He has published numerous articles in top law journals. He is the co-author of two leading casebooks and two edited volumes. He is also a member of the American Law Institute.
Andrew Manuel Crespo
    Andrew Manuel Crespo is the Morris Wasserstein Public Interest Professor of Law at Harvard University where he directs the Institute to End Mass Incarceration. Professor Crespo’s scholarship has been published in multiple leading academic journals including the Harvard Law Review, the Yale Law Journal, and the Columbia Law Review. Prior to beginning his academic career, Professor Crespo served as a Staff Attorney with the Public Defender Service for the District of Columbia, where he represented over one hundred people accused of crimes who could not afford a lawyer. Professor Crespo graduated magna cum laude from Harvard Law School, where he served as president of the Harvard Law Review and was the first Latino to hold that position. Following law school, he served as a law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit before going on to serve for two years as a law clerk at the United States Supreme Court, first to Associate Justice Stephen Breyer and then to Associate Justice Elena Kagan during her inaugural term on the Court.
​Walter Dellinger
    Walter Dellinger is the Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers. He was named one of the 100 Most Influential Lawyers in America by the National Law Journal and is the recipient of Lifetime Achievement Awards from the American Lawyer, the American Constitution Society and the Mississippi Center for Justice. Dellinger served in the White House and as Assistant Attorney General and head of the Office of Legal Counsel (OLC) from 1993 to 1996. He was acting Solicitor General for the 1996–97 Term of the US Supreme Court, He has argued 25 cases before the United States Supreme Court and has testified more than 30 times before committees of Congress. He has published in academic journals including the Harvard Law Review, the Yale Law Journal and the Duke Law Journal, and has written extensively for the Washington Post, The New York Times, the Wall Street Journal, Slate, and other publications. In 1987–88 he was a scholar at the National Humanities Center and has lectured at universities throughout the United States and other countries including China, Belgium, Netherlands, Germany, Mexico, Italy, Brazil, and Denmark. He graduated from University of North Carolina and Yale Law School and served as law clerk to Supreme Court Justice Hugo Black.
Justin Driver
    Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law School. He teaches and writes in the areas of constitutional law, education law, and prison law. His prize-winning book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, was selected as a Washington Post Notable Book of the Year, an Editors’ Choice of the New York Times Book Review, and received several other accolades. A recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize, he has published widely in the nation’s leading law reviews and has also written extensively for general audiences. He is an editor of the Supreme Court Review and an elected member of the American Law Institute. He holds degrees from Brown, Oxford (where he was a Marshall Scholar), Duke (where he received certification to teach public school), and Harvard Law School (where he was an editor of the Harvard Law Review). After graduating from Harvard, he clerked for Judge Merrick Garland, Justice Sandra Day O’Connor (Ret.), and Justice Stephen Breyer.
Richard H. Fallon, Jr.
    Richard H. Fallon, Jr., joined the Harvard Law School faculty as an assistant professor in 1982 and is currently Story Professor of Law. He is also an Affiliate Professor in the Harvard University Government Department. Fallon is a graduate of Yale University and Yale Law School. He also earned a B.A. degree in Philosophy, Politics, and Economics from Oxford University, which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as ​a law clerk to Judge J. Skelly Wright and to Justice Lewis F. Powell of the United States Supreme Court. Fallon has written extensively about Constitutional Law and Federal Courts Law. He is the author of The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny (Cambridge University Press, 2019); Law and Legitimacy in the Supreme Court (Harvard University Press, 2018), The Dynamic Constitution (Cambridge University Press, 2d ed. 2013), and Implementing the Constitution (Harvard University Press, 2001) and a co-editor of Hart & Wechsler’s The Federal Courts and the Federal System (7th ed. 2015). Fallon is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a two-time winner of Harvard Law School’s Sacks–Freund Award, which is voted annually by the School’s graduating class to honor excellence in teaching. In 2021, the Federal Courts Section of the American Association of Law Schools honored Fallon with its lifetime achievement award.
Caroline Fredrickson
    Caroline Fredrickson is a Distinguished Visiting Professor from Practice at Georgetown Law and a Senior Fellow at the Brennan Center for Justice. Caroline Fredrickson served as the President of the American Constitution Society from 2009–2019. Fredrickson has published works on many legal and constitutional issues and is a frequent guest on television and radio, including serving as a regular on-air commentator on impeachment. Before joining ACS, Fredrickson served as the Director of the ACLU’s Washington Legislative Office and as General Counsel and Legal Director of NARAL Pro-Choice America. In addition, she served as the Chief of Staff to Senator Maria Cantwell, of Washington, and Deputy Chief of Staff to then-Senate Democratic Leader Tom Daschle, of South Dakota. During the Clinton Administration, she served as Special Assistant to the President for Legislative Affairs. Fredrickson is currently an elected member of the American Law Institute, co-chair of the National Constitution Center’s Coalition of Freedom Advisory Board, a member of If/When/How’s Advisory Board, and on the boards of American Oversight and the National Institute of Money and Politics. In 2015 Fredrickson was appointed a member of the Yale Les Aspin Fellowship Committee. Fredrickson received her J.D. from Columbia Law School with honors and her B.A. from Yale University in Russian and East European Studies summa cum laude, phi beta kappa. She clerked for the Hon. James L. Oakes of the United States Court of Appeals for the Second Circuit.
Heather Gerken
    Heather Gerken is the Dean and Sol & Lillian Goldman Professor of Law at Yale Law School and one of the country’s leading experts on constitutional law and election law. A founder of the “nationalist school” of federalism, her work focuses on federalism, diversity, and dissent. Gerken’s work has been featured in the Harvard Law Review, the Yale Law Journal, and the ​Stanford Law Review as well as The Atlantic, TheBoston Globe, NPR, and TheNew York Times. In 2017, Politico Magazine named Gerken one of The Politico 50, a list of idea makers in American politics. At Yale, she founded and runs the country’s most innovative clinic in local government law, the San Francisco Affirmative Litigation Project (SFALP). Gerken is also a renowned teacher who has won awards at both Yale and Harvard. She was named one of the nation’s “twenty-six best law teachers” in a book published by the Harvard University Press. She became dean of Yale Law School on July 1, 2017.
Nancy Gertner
    Nancy Gertner was United States District Court Judge (D. Mass.) from 1994–2011. She retired to join the faculty at Harvard Law School and has been a Visiting Lecturer at Yale Law School. Prior to 1994, Gertner was a civil rights and criminal defense lawyer. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, she has published widely on sentencing, discrimination, forensic evidence, women’s rights, and the jury system. Her autobiography, “In Defense of Women: Memoirs of an Unrepentant Advocate,” (Beacon Press) was published in 2011. She is coauthor of “The Law of Juries” (Thomson Reuters, 2021). She is the author of an edited volume of the dissenting and majority opinions of Justice Ruth Bader Ginsburg (Talbot, forthcoming). She is writing a memoir, “Incomplete Sentences” (Beacon, forthcoming) about the men she has sentenced. A graduate of Barnard College, with a M.A in Political Science and J.D. from Yale, she clerked for Justice Luther Swygert, Chief Judge, 7th Circuit. She has received numerous awards, including the ABA’s Margaret Brent Award, the National Association of Women Lawyers’ Arabella Babb Mansfield Award, and the Thurgood Marshall Award from the American Bar Association. In October 2014, she was a resident scholar at the Rockefeller Foundation in Bellagio, Italy.
Thomas B. Griffith
    Thomas B. Griffith served on the U. S. Court of Appeals for the D. C. Circuit from 2005–2020. He is now Special Counsel at Hunton Andrews Kurth, a Senior Advisor to the National Institute for Civil Discourse, and a Lecturer on Law at Harvard Law School. During his tenure on the D.C. Circuit, Judge Griffith served on the Judicial Conference’s Committee on the Judicial Branch, which is concerned with the federal judiciary’s relationship to the Executive Branch and Congress, and the Code of Conduct Committee, which sets the ethical standards that govern the federal judiciary. Prior to his appointment to the D.C. Circuit, Judge Griffith was the General Counsel of Brigham Young University. Previously he served as Senate Legal Counsel, the nonpartisan chief legal officer of the U.S. Senate, and before that was a partner at Wiley, Rein & Fielding. Judge Griffith has long been active in the American Bar Association’s rule of law projects in Eastern Europe and Eurasia and is currently a member of the International ​Advisory Board of the CEELI Institute in Prague. He is a graduate of Brigham Young University and the University of Virginia School of Law.
Tara Leigh Grove
    Tara Leigh Grove is the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law. After graduating summa cum laude from Duke University and magna cum laude from Harvard Law School, Grove clerked for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit. She then spent four years as an appellate attorney for the U.S. Department of Justice, arguing fifteen cases in the courts of appeals. Grove has written extensively about the federal judiciary, exploring issues related to judicial legitimacy and judicial independence. Grove’s work has been published in prestigious law journals, such as the Harvard Law Review, the Columbia Law Review, the University of Pennsylvania Law Review, the New York University Law Review, the Cornell Law Review, and the Vanderbilt Law Review. Grove has served as a visiting professor at Harvard Law School and Northwestern Pritzker School of Law.
Bert I. Huang
    Bert I. Huang is the Michael I. Sovern Professor of Law at Columbia University, where he received the Reese Prize for Excellence in Teaching from the law school’s graduating class. The university has also recognized him with its Presidential Award for Outstanding Teaching. At Columbia, he created the Courts & Legal Process colloquium to bring judges, students, and faculty together to discuss new academic research about the judiciary; and he previously served as a vice dean. He has also taught at Harvard. He served as the president of the Harvard Law Review and as a law clerk for Justice David H. Souter of the U.S. Supreme Court. He also clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit. He completed his J.D. and Ph.D. at Harvard University, where he was a Paul & Daisy Soros Fellow. After receiving his A.B. from Harvard, he was a Marshall Scholar at the University of Oxford and worked for the White House Council of Economic Advisers.
Sherrilyn Ifill
    Sherrilyn Ifill is the President & Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. (LDF), the nation’s oldest and premier civil rights law organization fighting for racial justice and equality. Ifill began her career as a Fellow at the American Civil Liberties Union, and then as an Assistant Counsel at LDF where she litigated voting rights cases in the South. In 1993 Ifill joined the faculty at University of Maryland School of Law, where she taught civil procedure, constitutional law, and a broad range of civil rights and clinical offerings. Her scholarship focused on the critical importance of a racially diverse judiciary to the integrity of ​judicial decision-making. Ifill also studies and writes about racial violence. Her critically acclaimed book, On The Courthouse Lawn: Confronting The Legacy Of Lynching In The 21st Century, is credited with inspiring contemporary conversations about lynching and reconciliation. Since returning to LDF as its 7th President & Director-Counsel in 2013, Ifill has led the organization’s bold advocacy in the federal courts, including the U.S. Supreme Court, on behalf of clients fighting voter suppression, racial discrimination in the criminal justice system, and a broad array of other urgent civil rights issues. Ifill is a member of the American Law Institute and the American Academy of Arts & Sciences. She holds an undergraduate degree from Vassar College, a J.D. from New York University School of Law, and numerous honorary doctorates.
Olatunde Johnson
    Olatunde Johnson is the Jerome B. Sherman Professor of Law at Columbia Law School where she teaches and writes about legislation, administrative law, antidiscrimination law, litigation, and inequality in the United States. In February 2020, she was appointed by the United States Department of Justice to the Resolutions Committee honoring Justice John Paul Stevens. In 2016, she was awarded Columbia University’s Presidential Award for Outstanding Teaching, and Columbia Law School’s Willis L.M. Reese Prize for Excellence in Teaching. Previously, Professor Johnson served as constitutional and civil rights counsel to Senator Edward M. Kennedy on the Senate Judiciary Committee and as an attorney at the NAACP Legal Defense Fund. Professor Johnson graduated from Yale University and from Stanford Law School. After law school, she clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the United States Supreme Court.
Michael S. Kang
    Michael S. Kang is the William G. and Virginia K. Karnes Research Professor at Northwestern Pritzker School of Law and nationally recognized expert on campaign finance, voting rights, redistricting, judicial elections, and corporate governance. His research has been published widely in leading law journals and featured in TheNew York Times, The Washington Post, and Forbes, among others. His recent work focuses on partisan gerrymandering; the influence of party and campaign finance on elected judges; the de-regulation of campaign finance after Citizens United; and so-called “sore loser laws” that restrict losing primary candidates from running in the general election. Kang previously served as the Thomas Simmons Professor of Law at Emory University School of Law. He received his BA and JD from the University of Chicago, where he served as technical editor of the Law Review and graduated Order of the Coif. He also received a PhD in government from Harvard University and an MA from the University of Illinois. After law school, he clerked for Judge Kanne on the U.S. Court of Appeals for the Seventh Circuit and worked in private practice at Ropes & Gray in Boston.
​Alison L. LaCroix
    Alison L. LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago Law School. She is also an Associate Member of the University of Chicago Department of History. Professor LaCroix is the author of The Ideological Origins of American Federalism (Harvard University Press, 2010), and in 2018 she was awarded a National Endowment for the Humanities Fellowship for her current book project, titled The Interbellum Constitution: Union, Commerce, and Slavery From the Long Founding Moment to the Civil War (Yale University Press, forthcoming). Before joining the University of Chicago faculty in 2006, she practiced in the litigation department at Debevoise & Plimpton in New York. Professor LaCroix received her B.A. and J.D. from Yale University, and her A.M. and Ph.D. from Harvard University.
Margaret H. Lemos
    Maggie Lemos is the Robert G. Seaks LL.B. ’34 Professor of Law, Senior Associate Dean for Faculty and Research, and faculty co-advisor for the Bolch Judicial Institute at Duke Law School. She is a scholar of constitutional law, legal institutions, and procedure. Her current research focuses on the institutions of law interpretation and enforcement, including both public and private lawyers, and their effects on substantive rights. Lemos is also a co-author of a new multidisciplinary coursebook on judicial decision making. She teaches courses on civil procedure, legislation, and judicial process, and was awarded Duke’s Distinguished Teaching Award in 2013. Prior to joining the Duke Law faculty, Lemos was an associate professor at the Benjamin N. Cardozo School of Law; a Bristow Fellow at the Office of the Solicitor General; and a law clerk for Judge Kermit V. Lipez of the U.S. Court of Appeals for the First Circuit, and for U.S. Supreme Court Justice John Paul Stevens. She received her J.D. from New York University School of Law and her B.A. from Brown University.
David F. Levi
    David F. Levi is the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute at Duke Law School. Levi was previously the James B. Duke and Benjamin N. Duke Dean of the Duke Law School. He served as dean for 11 years from 2007–2018. Prior to his appointment at Duke, Levi was the Chief United States District Judge for the Eastern District of California with chambers in Sacramento. He was appointed to the district court in 1990. From 1986–1990 he was the United States Attorney for the Eastern District of California. Following graduation from Stanford Law School in 1980, Levi served as a law clerk to Judge Ben C. Duniway of the U.S. Court of Appeals for the Ninth Circuit, and then to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court. Levi has served as member and chair of two U.S. Judicial Conference committees — the Advisory Committee on the Civil Rules and the Standing Committee on the Rules of Practice and Procedure. He was chair of the American Bar ​Association’s Standing Committee on the American Judicial System (2014–2016). He is an elected fellow of the American Academy of Arts and Sciences. He is the author or co-author of several books, articles, and published speeches mostly on the judiciary, judicial independence, and judicial decision-making. He is President of the American Law Institute.
Trevor W. Morrison
    Trevor Morrison serves as Dean of New York University School of Law, where he is also the Eric M. & Laurie B. Roth Professor of Law. He previously held faculty appointments at Cornell Law School and Columbia Law School. Morrison’s research and teaching interests are in constitutional law (especially separation of powers), federal courts, and the law of the executive branch. After graduating from Columbia Law School, he served as a law clerk to Judge Betty Fletcher of the U.S. Court of Appeals for the Ninth Circuit and to Justice Ruth Bader Ginsburg of the U.S. Supreme Court. Between those clerkships, he was a Bristow Fellow in the U.S. Justice Department’s Office of the Solicitor General, an attorney-adviser in the Justice Department’s Office of Legal Counsel, and an associate at Wilmer, Cutler & Pickering (now WilmerHale). Morrison also served as associate counsel to President Barack Obama. He is a fellow of the American Academy of Arts & Sciences and a member of the American Law Institute and the Council on Foreign Relations.
Richard H. Pildes
    Professor Richard H. Pildes is Sudler Family Professor of Constitutional Law at New York University School of Law and one of the country’s leading experts on the legal aspects of American democracy and government. His academic work focuses on all aspects of the political process, as well as legal issues concerning the structure of American government, including the powers of the President, Congress, and the Supreme Court. His two casebooks, The Law of Democracy and When Elections Go Bad, created the law of democracy as a field of study in the law schools. In addition to editing the book, The Future of the Voting Rights Act, he has published more than seventy academic articles. Pildes has represented numerous clients before the Supreme Court. He served as a law clerk at the Court to Justice Thurgood Marshall and to Judge Abner J. Mikva of the United States Court of Appeals for the D.C. Circuit. He has testified several times before the United States Senate and House of Representatives. Born in Chicago, he began his teaching career at the University of Michigan Law School, before moving to NYU. He is an elected member of the American Academy of Arts and Sciences and the American Law Institute, as well as a Guggenheim Fellow.
​Michael D. Ramsey
    Michael D. Ramsey is Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law, where he teaches and writes in the areas of constitutional law, foreign relations law, and international law. He is the author of The Constitution’s Text in Foreign Affairs (Harvard University Press 2007), co-editor of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge University Press 2011), and co-author of two casebooks, Transnational Law and Practice (Aspen 2015) and International Business Transactions: A Problem-Oriented Coursebook (12th ed., West 2015). His scholarly articles have appeared in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law. He received his B.A. magna cum laude from Dartmouth College and his J.D. summa cum laude from Stanford Law School. Prior to teaching, he served as a judicial clerk for Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit and Justice Antonin Scalia of the United States Supreme Court, and practiced law with the law firm of Latham & Watkins. He has taught as a visiting professor at the University of California, San Diego, in the Department of Political Science and at the University of Paris – Sorbonne, in the Department of Comparative Law.
Cristina M. Rodríguez (Co-Chair)
    Cristina M. Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. Her fields of research and teaching include constitutional law and theory, immigration law and policy, and administrative law and process. Her new book, The President and Immigration Law (with Adam B. Cox) was published by Oxford University Press in September 2020, and explores the long history of presidential control over immigration policy and its implications for the future of immigration law and the presidency itself. Rodríguez joined Yale Law School in 2013 after serving for two years as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. She was on the faculty at the New York University School of Law from 2004–2012 and has been Visiting Professor of Law at Stanford, Harvard, and Columbia Law Schools. She is a member of the American Academy of Arts and Sciences and the American Law Institute, a non-resident fellow at the Migration Policy Institute in Washington, D.C., and a past member of the Council on Foreign Relations. She is also a past recipient of the Yale Law Women Award for Excellence in Teaching. She earned her B.A. and J.D. degrees from Yale and attended Oxford University as a Rhodes Scholar, where she received a Master of Letters in Modern History. Following law school, Rodríguez clerked for Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit and Justice Sandra Day O’Connor of the U.S. Supreme Court.
​Kermit Roosevelt
    Kermit Roosevelt is a professor of law at the University of Pennsylvania Carey Law School, where he teaches constitutional law and conflict of laws. He is a graduate of Harvard College and Yale Law School. Before joining the Penn faculty, he practiced appellate litigation with Mayer Brown in Chicago and clerked for D.C. Circuit Judge Stephen F. Williams and Supreme Court Justice David H. Souter. He is the Reporter for the American Law Institute’s Third Restatement of Conflict of Laws. His most recent book, The Nation that Never Was: Reconstructing America’s Story (University of Chicago Press, 2022), explores the source of American values of liberty and equality.
Bertrall Ross
    Bertrall Ross is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia, School of Law. He teaches and writes in the areas of constitutional law, election law, administrative law, and statutory interpretation. Ross’s research is driven by a concern about democratic responsiveness and accountability, as well as the inclusion of marginalized communities in administrative and political processes. His past scholarship has been published in several books and journals, including the Columbia Law Review, the NYU Law Review, and the University of Chicago Law Review. Ross is currently working on book projects related to separation of powers, gerrymandering, and voter data as a tool for disfranchisement. Ross has been the recipient of the Berkeley Law Rutter Award for Teaching Distinction, the Berlin Prize from the American Academy in Berlin, the Princeton University Law and Public Affairs Fellowship, the Columbia Law School Kellis Parker Academic Fellowship, and the Marshall Scholarship. He is currently a public member of the Administrative Conference of the United States. Ross earned his law degree from Yale Law School and Masters degrees from the London School of Economics and Princeton University’s School of Public and International Affairs. Prior to joining Berkeley Law, he clerked for Judge Dorothy Nelson of the U.S. Court of Appeals for the Ninth Circuit and Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama.
David A. Strauss
    David Strauss is the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic at the University of Chicago. He is the author of The Living Constitution (Oxford University Press, 2010) and the co-author of Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (Oxford University Press, 2019), and he has written many academic and popular articles on constitutional law and related subjects. He is a Fellow of the American Academy of Arts and Sciences and a co-editor of the Supreme Court Review. He has been a visiting professor at ​Harvard and Georgetown. He has served as an Assistant to the Solicitor General of the United States, in the Office of Legal Counsel of the U.S. Department of Justice, and as Special Counsel to the Senate Judiciary Committee. He has argued nineteen cases before the U.S. Supreme Court.
Laurence H. Tribe
    Laurence Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University. Tribe has taught at Harvard since 1968 and was voted the best professor by the class of 2000. The title “University Professor” is Harvard’s highest academic honor, awarded to a handful of professors at any given time and to fewer than 75 professors in Harvard University’s history. Tribe clerked for the California and U.S. Supreme Courts; was elected to the American Academy of Arts and Sciences in 1980 and the American Philosophical Society in 2010; helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands; and has received eleven honorary degrees, most recently a degree honoris causa from the Government of Mexico in March 2011 (never before awarded to an American) and an LL.D from Columbia University. Tribe has argued 35 cases in the U.S. Supreme Court. He was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice. He has written 115 books and articles, most recently, “To End A Presidency: The Power of Impeachment.” His treatise, “American Constitutional Law,” has been cited more than any other legal text since 1950.
Michael Waldman
    Michael Waldman is the president of the Brennan Center for Justice at NYU School of Law. The Brennan Center is a nonpartisan law and policy institute that works to strengthen the systems of democracy and justice so they work for all Americans. The Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman has led the Center since 2005. He is the author of The Fight to Vote (2016), a history of the struggle to win voting rights for all citizens, The Second Amendment: A Biography (2014), and five other books. Waldman served as director of speechwriting for President Bill Clinton from 1995–1999, and special assistant to the president for policy coordination from 1993–1995. He was responsible for writing or editing nearly two thousand speeches, including four State of the Union and two inaugural addresses. He is a graduate of NYU School of Law and Columbia College.
Adam White
    Adam White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. He writes ​on the courts, the Constitution, administrative law, and regulatory policy. He is a public member of the Administrative Conference of the United States. Previously he practiced constitutional and administrative law in Washington, D.C., and he clerked for the U.S. Court of Appeals for the D.C. Circuit, after graduating from the Harvard Law School and the University of Iowa. In 2005, the Harvard Journal of Law & Public Policy published his study of the Senate’s constitutional power to grant or withhold its “advice and consent” for judicial nominations.
Keith E. Whittington
    Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is currently the chair of Academic Freedom Alliance. He works on American constitutional history, politics and law, and on American political thought. He is the author of Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, among other works. He has been a visiting professor at Harvard Law School, Georgetown University Law Center, and the University of Texas School of Law, and he is a member of the American Academy of Arts and Sciences. He did his undergraduate work at the University of Texas at Austin and completed his Ph.D. in political science at Yale University.