Presidential Commission on the Supreme Court Throws Ball Back to Biden

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.

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  1. lyman alpha blob

    “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 [Laurence Tribe] 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.

    Well let’s unpack this a little bit. Two of the current Supremes were appointed by W. Obviously they would not be on the court if W had not been president. And who was on Gore’s legal team when the 2000 election was contested – why none other than Laurence Tribe!

    I’m so old I also remember that Barack Obama could have appointed a new justice when Scalia shedded his mortal coil but dithered and caved to Republican opposition instead, despite it being his constitutional right to appoint someone. Who was at one point a judicial advisor to Barack Obama- once again it’s Laurence Tribe! The Democrat party owns Neil Gorsuch – they can’t blame that appointment on anyone but themselves.

    About 30 seconds of research will show that Tribe has made quite the career cozying up to corporate Democrats and defending the rights of large corporations. I don’t disagree that the court has made some poor decisions but perhaps if Tribe had done his job better he wouldn’t need to be whingeing now about packing the court so it was more to his liking. And I’m a little unclear about what he doesn’t like – the nominees from both parties are very consistent in siding with his corporate pals.

    Tribe and the Democrat party continue to think this is all a beanbag game, which as we know, politics ain’t.

    1. Susan the other

      Everything being political, the one thing I can’t stomach about Gorsuch is that he behaves as if he believes he’s a real hot shot. But he certainly doesn’t speak well and his writing (forget which opinion I was unfortunate enough to read) is about as good as a fifth-grader’s. Gorsuch is a twit. What alternative do we have to an institutionalized Supreme Court that is dysfunctional?

      1. LowellHighlander

        Susan the other,

        I’d like to proffer some food-for-thought for the long term with regard to the question on which you ended your comment.

        Roslyn Fuller, in her book Beasts and Gods, offers a way out of this dysfunction. In ancient Athens, juries had hundreds of members. People (i.e. free men) would just show up and listen to the “trial” (not that we’d necessarily recognize it as such). If I remember correctly, no attendance was taken. Then, at the end of the trial, these hundreds of jurors would vote to render their verdict.

        The points are that American jurisprudence looks to the jury system, founded in Ancient Greece, as the ultimate inspiration for our jury system. Secondly, once we realize that there is nothing sacred about the Supreme Court as an institution – Dred Scott decision, anyone? – then the sky can become the limit: we could really make a Supreme Court far more democratic than the institution we have now.

        1. MK

          “Dred Scott decision, anyone?”

          Although not a decision that was just or correct – that is one out of thousands. The % over time is that they get it right wayyyy more often then they get it wrong. Humans ain’t perfect – never have been, never will be.

    2. Eric377

      Obama nominated Garland and he was not confirmed. Not sure what you mean by “appoint” someone unless you mean a recess appointment. But that still would have left Trump to permanently fill Scalia’s vacancy. Hard to imagine anyone accepting it from lame duck a just days prior to an election to replace him, particularly if they had do give up a good judgeship that they would not get back.

  2. jsn

    On their current trajectory, I don’t see the Democratic Party being long for this world. Why should anyone outside the 10% vote for them?

    Biden is delivering across the board on his “nothing will fundamentally change” right through multiple climate tipping points and a pandemic, events causing everything outside our sclerotic, bought and paid-for politics to change at an accelerating rate.

    I’ve seen all over the place the official narrative that FDR’s court packing proposal cost him power when an actual review of the history shows it caused the Supreme Court to back off, allowing the institutionalization of New Deal policies it took extractive capitalism 40 years to dismantle. Biden, obviously is fully on board with the extractivists: Psaki, ‘Then what happens if every American has one test? How much does that cost, and then what happens after that?’ Citizens as an extractive resource for capitalists.

    1. jsn

      Ironically, the extractive capitalist Conrad Black, in his excellent biography of FDR shows how FDR got what he wanted from the threat to pack the courts.

      People are mistaken in thinking FDR opposed capitalism, he simply imagined that managed properly it could produce the benefits Adam Smith saw in it and went about building the institutions and governing capability to execute necessary to make capitalism deliver on Smith’s promise.

      Naturally, most capitalists hated him for it: fraud, theft, abuse of market power and outright expropriation are all much easier ways to get rich than competitive, democratically governed capitalism. Starting before the war with the Dulles brothers IP deal between the corporations of the soon to be combatants, capital spent the next 80 systematically dismantling all of those constraints to get us to our present neoliberal utopia.

      1. Carolinian

        Roosevelt got what he wanted while taking a political hit. He retained enough esteem to win the next election but more closely. How much esteem does Joe Biden enjoy? His being president isn’t that much less of a happenstance than Donald Trump being president–indeed one might argue only because Trump became president.

        The country has big problems but doubtful that Biden will ever be the one to solve them. He’d do better to lower his profile and concentrate on his main job which is not being Trump. IMO he really is threatening to take the rest of the Dems down with him.

      2. flora

        I don’t disagree with this.

        The old adage is: The Court follows the election.
        Imo, “The Court follows the election” is indirectly true by the Court weighing the direction of public opinion over time. The Court had a sense of history over time that immediate electoral contests ignore. Look at FDR’s public approval ratings in his time. Now look at B’s public approval ratings in our time.

        Apologies for these quotes an earlier SC Chief Justice, lest this be seen as me engaging in silly pedantry:

        “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.”

        and ,of course,

        ” Certitude leads to violence. This is a proposition that has an easy application and a difficult one. The easy application is to ideoologues, dogmatists, and bullies–people who think that their rigtness justifies them in imposing on anyone who does not happen to suscribe to their particular ideology, dogma or notion of turf. If the conviction of rightness is powerful enough, resistance to it will be met, sooner or later by force. There are people like this in every sphere of life, and it is natural to feel that the world would be a better place without them!”

        – Oliver Wendell Holmes, Jr. , Chief Justice of USSC

        1. flora

          edit: OWJ,jr was an a
          Associate Justice of the US Supreme Court, not the Chief Justice. His thinking and writing was the doorway to the modern US Court’s law analysis, imo.

  3. Synoia

    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.

    Really? To me it reads as a perfect vehicle for do Nothing Biden..

  4. Bill Smith

    The problem I see with court packing… if it is done and then the Republican’s win later on, why wouldn’t they just add a few more justices to pack it the other way?

    If anything was done I would lean towards something like staggered terms that term limited a justice every 4 years in the middle of a presidential term. Anyone who left early, their remaining term would be filled only to the end of that term.

    1. marym

      That Republicans may then do the same or something more extreme isn’t, imo, a valid argument in itself against Democrats doing something bold. Republicans always do whatever they can. They already packed the court in refusing to confirm Garland and rushing to confirm Barrett. If they retake the majority they will continue to consolidate and entrench their power, no matter what Democrats have done or not done.

      Sure, R’s may argue that whatever they do is payback, or blowback, or whatever for something the D’s have done. D’s can offer the same justification (payback for Gorusch and Barrett, payback for Bush v Gore… whatever) if they care to. They just never do.

      1. Code Name D

        Very much agreed. The argument also ignores more balanced reforms that may de-politicize the courts. It also ignores older deforms made by Republicans Ragan and Bush I (citified into law by Democratic inaction) that could be restored, or at the very least exposed from the pulpit.

        For example, before Bush I, the President often published a kind of “short list” of petechial court nominees upon taking office and before court vacancies emerge. This gave the Bar Association, assorted universities that specialize in Law, and investigative reporters to dig into the histories of potential nominees and debate their qualifications. Those who have discovered black marks can be quietly dropped from the list. When vacancies emerge, the president (or governors) & Senate can make informed nominations. Its also harder to sneak ideologs past the selection process.

        This process is old. So old that Kansas has the process codified in the state constitution and still in practice, keeping the State Supreme Court non-politicized. In Kansas, once a vacancy is formed, the governor is required to seek recommendations from legal institutions such as the Kansas Bar. The KBA then produces a list of candidates they deem qualified for the post. The governor can only appoint from that list. (Its an open question if the governor can ignore the list and allow a vacancy.)

        But at the Federal level, this was more of a tradition and not codified in written law. Regain weekend the tradition by being slow publishing the short list and adding new names to the list with little notice. Reducing time needed to review said candidates. Bush, I did away with the tradition all together by not submitting such a list, and only appointing a candidate once a vacancy appeared.

        Bush and Obama never even commented on the erosion of the tradition, let alone seek redress. Worse, they are silent on the assaults of remaining defenses. The Kansas Constitution has been under assault some time, seeking to remove this provision.

        In MMHO, Biden’s commission is more of a review of “acceptable” thinking, designed to officiate “why-don’t-you” recommendations that arise from the general public, as well as white wash Republican overt efforts to pack the court.

  5. Bart Hansen

    One of the ‘cons’ to court expansion must go something like this: ‘Well, there are only nine offices in the building suitable for members of the highest court of all, plus the desk we sit on in open court was hand hewn by James Madison himself and has room for only nine.’

  6. cocomaan

    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

    This should be a lesson to progressives of any stripe: when you are told that a committee is being formed to study the issue, a lot of nothing is about to happen. It’s the death knell of whatever your pet issue was.

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