The Supreme Court.
President Biden today published a list of the members of his proposed Presidential Commission at the United States Supreme Court. This is the judicial reform commission he promised during the presidential campaign. As expected, the commission is co-chaired by Bob Bauer, former Obama White House attorney, and Cristina Rodriguez, professor at Yale Law School. Most of the other members are lawyers, including my bloggers Will Baude (University of Chicago) and Keith Whittington (Princeton).
Perhaps more importantly, this is a truly bipartisan, cross-thinking group. In addition to Will and Keith, there are several other conservative or libertarian members including Jack Goldsmith (Harvard), Judge Thomas Griffith (formerly DC Circuit), Michael Ramsey (University of San Diego) and Tara Leigh Grove (University of Alabama), Caleb Nelson (University of Virginia) and Adam White (my colleague from George Mason University). That group will be in a minority on a commission of thirty-six total (if I’ve counted correctly). But it will be big enough to have real clout.
I’m not going to go through your credentials here. But the commissioners, both left and right, are an impressive group with a wide variety of knowledge and experience that together encompass almost every aspect of the work of the Supreme Court.
As I predicted back in January, the composition of the commission is also bad news for proponents of the trial who may have been hoping it would come up with a report confirming the idea. Obviously, I am confident that none of the Center-Right Members would support such an idea. But some of the Liberals (including co-chair Bob Bauer and Laurence Tribe) have also been shown to be against it.
There are likely some trial advocates in the group. However, it is highly unlikely that they can support the majority in the Commission. The same applies to various proposals for trial under a different name, such as “rotation” and “court settlement”.
While the commission is unlikely to endorse the trial, it could potentially agree on other reforms that have much broader cross-cutting support, such as an 18-year term for Supreme Court justices. I support this idea myself, but I also believe that a constitutional change is needed. In contrast, some legal scholars (including Commissioner Jack Balkin) claim that it (or something close to it) can be passed through ordinary legislation. This issue could well be a focus of the debate within the Commission.
An interesting aspect of the commission is that its mandate is limited to examining only proposals to reform the Supreme Court:
The Commission’s aim is to provide an analysis of the main arguments for and against the reform of the Supreme Court in the current public debate, including an assessment of the merits and legitimacy of certain reform proposals. The topics covered include the emergence of the reform debate; the role of the Court of Justice in the constitutional system; the length of service and turnover of judges at the Court; the membership and size of the court; and the selection, rules and practices of the Court.
I assume they will not consider possible reforms to the rest of the federal judiciary.
Most presidential commissions don’t matter much. They often only put out reports that are quickly forgotten and doomed to collect dust on the bookshelves. That could also be the fate of this commission. However, there is at least a real chance that this could be an exception if broad consensus can be reached in favor of term constraints or some similar proposal.
The Commission will hold hearings at which it will seek testimony from experts and will have to provide a report within 180 days of its first public hearing. I look forward to reading it!
UPDATE: It is worth noting that the Commission could possibly come up with an analysis of possible reform options without actually making a recommendation. Co-blogger Josh Blackman suggests that his mandate may not allow him to recommend anything. However, the Implementing Regulation, which sets out the Commission’s objectives, indicates that it includes, among other things, “an analysis of the main arguments in the current public debate for and against the reform of the Supreme Court, including an assessment of the merits and legitimacy of certain reform proposals “I believe that” an assessment of the merits and legitimacy of certain reform proposals “enables the Commission (and may even require it) to approve or reject certain reforms.
Therefore, the Commission could issue a report supporting one or more specific reform proposals. Whether this support takes the form of an official “recommendation” may not play a major role.