By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The Presidential Commission on the Supreme Court of the United States, created by President Joe Biden by executive order in April 2021, unanimously adopted its final report, which it published yesterday.
And as it was designed to do, the panel took no position on the vexing issue of endorsing any specific reform – via “court packing”, term limits, rotation, or any other mechanism. The report instead laid out arguments for and against various reform proposals. According to the Wall Street Journal in Commission Approves Report on Supreme Court Amid Partisan Differences.
“The report is so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment,” said University of Texas law professor Sanford Levinson. “Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.”
A combination of bad luck as to when Supreme Court vacancies have occurred, as well as the hapless management of Supreme Court nominations, e.g. the Merrick Garland debacle, and the failure to press Ruth Bader Ginsburg to retire at a time when Democrats were in charge of Oval Office and the Senate, resulted in the court’s current lop-sided 6-3 conservative majority.
The panel’s membership, comprised of former judges, practicing lawyers, and scholars, skewed 6-1 in what counts as a progressive direction in U.S. legal circles. Nonetheless, the final report failed to endorse any court-packing scheme. To have done so, some said, might have provided Biden with political cover to attempt to recast the Supreme Court’s membership in the run-up to the 2022 mid-term elections. The far more prevalent majority view is that for Biden to do so would be political suicide in what already looks to be a fraught year for Democrats.
Concerns over the Supreme Court’s membership has increased as the Court last week heard oral argument on a case challenging Mississippi’s restrictions on abortion. If, as expected, the Court overturns or drastically circumscribes the landmark 1973 Roe v. Wade framework establishing access to abortion as a constitutional right, a majority of states are poised to impose their own further restrictions on such procedures. According to NPR in ‘Trigger laws’ are abortion bans ready to go if ‘Roe v. Wade’ is overturned:
By the end of this term, the Supreme Court will decide a Mississippi abortion case that might overturn Roe v. Wade. If the justices accept the state’s broadest argument, then about half the country could quickly fall under strict abortion bans. That’s because of laws that state legislatures have put in place just waiting for a day the Supreme Court decides there is no constitutional right to abortion.
Instead of endorsing any Court expansion scheme, the commission’s report produced a scrupulous balanced assessment of arguments for and against, in a 28 page chapter. According to the WSJ article:
“There has never been so comprehensive and careful a study of ways to reform the Supreme Court; the history and legality of various reforms; and the pluses and minuses of each,” said a liberal commissioner, Harvard law professor Laurence Tribe.
“But in voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence,” he said, citing “the dubious way some justices got there” and “the anti-democratic, anti-egalitarian direction of its decisions about matters like voting rights, gerrymandering, and the corrupting effects of dark money,” all areas where conservative views prevailed. Mr. Tribe said the process had persuaded him to endorse expanding the court, a position he previously had viewed skeptically.
Other scholars have questioned the overall utility of the cautious approach the Commission pursued. According to the WSJ:
Another commissioner, former acting Solicitor General Walter Dellinger, said in the current political climate, it remained unclear when “someone would have the power to invoke these reforms and what that would mean.” He took the long view, saying: “We hope that the report’s explications of the issues might be useful a century from now.”
Some experts, while praising the report’s academic quality, weren’t so sure.
“Seems to me, it misses the most important defect in our current system: the partisan process of confirmation of appointees to the Supreme Court,” said Newton Minow, a former Federal Communications Commission chairman who clerked for Chief Justice Fred Vinson in the 1951-52 term.
Minow, who is perhaps best known for his 1961 speech in which he described American commercial television programming as a “vast wasteland”, hasn’t lost his gift for astuteness.
By contrast, unsurprisingly, the WSJ’s editorial board, in Biden’s Supreme Court Packers Pack Up lauded the report’s approach and suggested that Biden should now firmly repudiate calls to restructure the Court:
The progressive commissioners then claim—and we can’t imagine this was written with a straight face—that court packing could “calm the controversy surrounding the court.” The claim that “attempted expansion” could intimidate, er, “lead the Supreme Court to be more restrained in its jurisprudence and more respectful of the role of the political branches” is more honest. Though we hope the Justices are not intimidated, and we doubt progressives want them to be more respectful of Mississippi’s Legislature in the Dobbs abortion case.
The opponents of court packing got their licks in. They explained that such a radical step would “significantly undermine the Supreme Court’s independence. Courts cannot serve as effective checks on government officials if their personnel can be altered by those same government officials.” The passage explaining the use of court packing by despots in Turkey, Venezuela and other countries is devastating.
The more lengthy sections of the report discuss the history of judicial review in the U.S., as well as the possibility of judicial term limits, the scope of the Court’s jurisdiction and the emergency docket—generally taking a cautious tone toward major change. Those literature reviews could make for engaging reading in law schools, but they bear less on Mr. Biden’s political dilemma.
The President should have repudiated court packing a year ago, and now he’s in a weaker political position. But the report contains arguments he needs if he now wants to stand up for judicial independence.
The Bottom Line
Biden always intended to dodge any serious attempt at Supreme Court reform. Otherwise, he wouldn’t have engaged in the time-wasting move of appointing a commission to study the issue. What was that expected to achieve? The arguments for and against restructuring have been well-known at least since Franklin Delano Roosevelt first advanced a court packing scheme in 1937 to overcome the Supreme Court’s hostility to his New Deal policies.
To be fair to Biden, the narrow majority Democrats hold in the Senate would have prevented any major change from being enacted, no matter whatever his degree of enthusiasm for any such scheme. Yet with this report, I think one can consider the issue dead and buried, at least for the moment.
And in fact now, as Politico reported late last month, ‘They’ll freeze them out’: Democrats fear Senate Republicans will block Biden’s judges, with mid-terms looming, concern has increased that if Republicans once again control the Senate, the administration won’t be able to get judges confirmed. So we may see a Merrick Garland redux scenario evolve.
Stay tuned and pass the popcorn.