Nonpartisan Supreme Court Reform and the Biden Commission

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any reform’s merits.It was hard to imagine that any commission could deliver recommendations that would persuade political actors of both parties of the need for major reforms. But was the idea behind the Biden Commission wrong-headed? That is, is the very notion of nonpartisan Supreme Court reform mistaken? This Essay tries to answer this question. Building on my testimony before the Commission, I try to develop a plausible nonpartisan argument for reforming the Supreme Court: an argument why one could conclude that the current structure of the Court is flawed and needs to be changed, without regard to the current partisan balance of power on the Court. I briefly categorize and describe possible responses to that problem. I then discuss the Commission’s efforts—and failures—to build bipartisan support for Supreme Court reform. Finally, I use the Commission as a springboard for discussing the difficult obstacles for nonpartisan structural reform of the Court in our polarized system

Perfecting Issue Preservation

In his article, “Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process,” Darryl Brown challenges the venerable rule that a defendant must preserve objections to erroneous rulings at trial in order to perfect them for later appeal. Brown ably convinced me that conventional wisdom about who should bear the burden of bringing errors to a court’s attention is woefully under-theorized. In particular, Brown’s move to analyze adjudicative error from the perspective of accident prevention in other legal contexts is both clever and generative of insights. Moreover, Brown made a persuasive case that normative judgments about fairness, rather than a careful cost–benefit analysis, may better explain the status quo. What I am less certain of, though, is whether Brown has met his burden of persuading us that we should adopt his proposed rule: that the law should place the duty to avoid errors on the party that benefits from the error.In this short Response, I explain why I am not fully persuaded. In Part I, I discuss why Brown’s rule may not necessarily prevent errors as much as he hopes, and may instead significantly increase reversals and retrials. In Part II, I question whether that cost is worth bearing, by interrogating the concept of “error” and its multiple possible meanings. That inquiry leads me to a limited defense of our system’s current approach to forfeited legal errors. I conclude by suggesting more modest reforms that, in my view, follow from Brown’s significant insights

The Right Approach to Harmless Error

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights.Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able efforts in his response piece “Criminal Procedure Rights and Harmless Error: A Response to Professor Epps,” I remain persuaded of the correctness of the rights-based approach to harmless error laid out in my article.In this short Reply, I explain why. First, I respond to Professor Greabe’s most significant criticisms of my rights-based approach, and show why I think they miss the mark. Second, I explain why Professor Greabe’s own remedy-based theory is itself problematic and unable to solve the enduring riddles of harmless error

Hectospec, the MMT's 300 Optical Fiber-Fed Spectrograph

The Hectospec is a 300 optical fiber fed spectrograph commissioned at the MMT in the spring of 2004. A pair of high-speed six-axis robots move the 300 fiber buttons between observing configurations within ~300 s and to an accuracy ~25 microns. The optical fibers run for 26 m between the MMT's focal surface and the bench spectrograph operating at R~1000-2000. Another high dispersion bench spectrograph offering R~5,000, Hectochelle, is also available. The system throughput, including all losses in the telescope optics, fibers, and spectrograph peaks at ~10% at the grating blaze in 1" FWHM seeing. Correcting for aperture losses at the 1.5" diameter fiber entrance aperture, the system throughput peaks at $\sim$17%. Hectospec has proven to be a workhorse instrument at the MMT. Hectospec and Hectochelle together were scheduled for 1/3 of the available nights since its commissioning. Hectospec has returned \~60,000 reduced spectra for 16 scientific programs during its first year of operation.Comment: 68 pages, 28 figures, to appear in December 2005 PAS

The Defender General

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages