April 12, 2021

Supreme Court Commission

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“President Joe Biden has ordered a study on overhauling the Supreme Court, creating a bipartisan commission [last] Friday that will spend the next six months examining the politically incendiary issues of expanding the court and instituting term limits for justices, among other issues.” AP News

“Justice Stephen Breyer [last] Tuesday said liberal advocates of big changes at the Supreme Court, including expanding the number of justices, should think ‘long and hard’ about what they’re proposing. Politically driven change could diminish the trust Americans place in the court, Breyer said.” AP News

Read our previous coverage of expanding the Supreme Court here. The Flip Side

See past issues

From the Left

The left is skeptical of the commission and argues in favor of structural changes to the Supreme Court.

“When the White House released the list of commission members on Friday, it swiftly won praise — from members of the conservative Federalist Society… while the author of one of the most significant attacks on Obamacare in the last decade is on Biden’s commission, none of the leading academic proponents of Supreme Court reform were appointed

“The commission does not include law professors Daniel Epps and Ganesh Sitaraman, authors of a highly influential proposal to expand the Supreme Court to 15 justices and have the key members of the Court be chosen in a bipartisan process that is intended to make the Court less ideological. And it does not include Aaron Belkin, a political science professor and leader of Take Back the Court…

“In choosing the members of this commission, the White House appears to have prioritized bipartisanship and star power within the legal academy over choosing people who have actually spent a meaningful amount of time advocating for Supreme Court reforms.”
Ian Millhiser, Vox

“The first red flag here is the commission’s task: not to produce action items or recommendations, but to study issues that have already been studied to death. Congress repeatedly altered the size of the Supreme Court throughout the 19th century… Looking at the membership and goals of this commission, it seems obvious that Biden does not really want to pursue court reform

“Rather, he appears eager to scrape the issue off his plate by tossing it to (and I say this lovingly) a bunch of eggheads who have spent their careers marinating in the fantasy that the Supreme Court is apolitical. It’s a nice dream, and if I had the option, I wouldn’t want to wake up from it, either. But if you are a pregnant teenager in Texas terrified that SCOTUS will let the government veto your abortion, or a same-sex couple in Indiana scared that SCOTUS will let the state dissolve your marriage, or a transgender child in Arkansas worried that SCOTUS will let lawmakers cut off your medical care, you do not have that luxury.”
Mark Joseph Stern, Slate

“There would be far less talk of court enlargement if McConnell and Trump had not abused their power [to block Merrick Garland’s nomination and confirm Amy Coney Barrett right before elections]. Nor would enlargement be on the table if conservative justices had not substituted their own political preferences for Congress’s decisions, notably on voting rights and campaign finance reform, 5-to-4 rulings on which Breyer, rightly, joined the dissenters…

“So I respectfully dissent from the skepticism Breyer expressed about court enlargement… In his speech, Breyer declared that ‘the Constitution itself seeks to establish a workable democracy and to protect basic human rights.’ That’s a bracing vision, and it’s what advocates of court enlargement are trying to protect.”
EJ Dionne Jr., Washington Post

Others argue that “Court-packing isn’t the right fix for our courts. Ending life tenure is… The broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term. That would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices — thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees.”
Editorial Board, Washington Post

From the Right

The right is critical of the commission and argues against structural changes to the Supreme Court.

The right is critical of the commission and argues against structural changes to the Supreme Court.

“The commission will have an unwieldy 36 members, who tilt markedly to the political left. The co-chairs are Bob Bauer, Barack Obama’s former White House counsel, and Cristina Rodriguez, a former official in the Obama Justice Department… The commission includes a few legal conservatives, notably scholar Adam White, who has contributed to these pages; Princeton professor Keith Whittington ; and Caleb Nelson, a University of Virginia law professor and former clerk to Justice Clarence Thomas…

“The danger is that these conservatives will lend a bipartisan patina to a commission that by its very existence is meant to pressure the Supreme Court. The threat of court-packing is intended to make the Justices think twice about rulings that progressives dislike. Many of our legal friends think the threat has already had a notable impact on Chief Justice John Roberts on gun rights and abortion cases…

“The irony of this commission is that the Democratic Party is already in a position to shape the federal courts through normal channels. Judges appointed by Democrats have begun to retire, and most of Mr. Biden’s nominees will sweep through the Democratic-controlled Senate.”
Editorial Board, Wall Street Journal

“The court works just fine as it is and indeed enjoys the highest approval rating of any branch of the federal government. Two of the liberal high court titans of the past three decades, the late Justice Ruth Bader Ginsburg and current Justice Stephen Breyer, have argued strongly against court-packing. Ginsburg did so as recently as 2019, and Breyer did so just this week in a sharply worded speech at Harvard Law School…

“The problem isn’t how the Supreme Court operates, but rather how the Senate runs the nomination process. The political Left has turned the process into a blood sport, regularly attacking the character and motives of Republican nominees in vicious fashion (and in ways almost never reciprocated by conservatives)…

“The use of anonymous leaks, the abuse (and subsequent elimination) of filibusters as a weapon in confirmation battles, and the level of vitriol are all out of control. If Biden wanted to appoint a commission to recalibrate that system, to make it fairer to the nominees, and less of a star chamber, that would make sense.”
Quin Hillyer, Washington Examiner

“[Biden was] once an opponent of court-packing, calling former President Franklin D. Roosevelt’s attempt to add seats to the bench a ‘bonehead idea’ and a ‘terrible, terrible mistake.’ He accused Roosevelt of being ‘corrupted by power’ and praised congressional Democrats for standing up to his attempted ‘executive overreach.’… ‘It put in question there for an entire decade the independence of the most significant body in this country,’ Biden said in 1983.”
Kaylee McGhee White, Washington Examiner

“The commission has enough balance that we’re not likely to see it go all in on something as extreme as court packing. That’s probably because Biden himself doesn’t think it’s a good idea

“One of the other things the commission will look at is the possibility of term limits for SCOTUS justices. I’ve seen some people talking about limiting them to 18-year terms and others suggest the justices rotate such that every president gets 1 or 2 nominations. My guess is that in six months when the report is turned in we’ll hear a lot more about those ideas, if nothing else because it’ll be a way for the White House to take the focus off court packing.”
John Sexton, Hot Air

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