Below is my column in The Hill on President Joe Biden’s commission to the Supreme Court. While the composition of the composition of the commission is now known, the real purpose of the commission remains in doubt. While the Commission is likely to make recommendations for “reforms”, the creation of the Commission has been to take into account the court-wrapping scheme that was widely debated in the 2020 presidential election. Biden called court packaging exactly a “bony headed” and a “terrible, terrible idea”. However, he was not ready to face extreme voices in his own party, and this commission is the result. The hope of many in Washington is that this commission will back up the administration by lifting calls for new members to be admitted on short notice in order to create a liberal majority in the court. If this largely liberal commission recommends against packing in court, Biden and the Democratic leadership might shrug and say, “Well, we’ve tried.” The question is whether the Commission will feel pressure to come up with an alternative main recommended change. Over 20 years ago I recommended enlarging the Court to 17 or 19 members. However, this recommendation would go on for many years and would not give proponents the short-term majority they seek. That is the difference between reforming and packaging the Court of Justice. Even a gradual increase would also face significant resistance in the Senate, particularly due to the lack of confidence that a subsequent majority would add a few judges and then forego further additions in order to keep the majority in the courtroom under control. Even former Democratic majority leader Harry Reid warned of term restrictions or attempts to expand the Supreme Court as a dangerous avenue for Democrats.
Here is the column:
In establishing his commission to investigate the possible packaging of the Supreme Court, President Biden added his name to one of Franklin Roosevelt’s most inglorious efforts. Court wrapping has long been an abomination in the United States, and surveys have consistently shown that the vast majority of Americans are against the idea. Biden himself once denounced it as a “bony-headed” idea, but that was in 1983, when there was real room in politics, at least for the claim of the principle.
Now, Biden and others seem to agree that the Supreme Court must be canceled for failing to give in to the demands of our age of anger. Many of us were surprised when he packed up in court in the 2020 primary. Some of us have called for the court to expand over a longer transition period, but commentators and some Democrats have called for an immediate infusion of new judges to give the Liberals a controlling majority. Dissatisfied with conservative rulings, the Democrats demanded that the Supreme Court be replaced by a much larger and more reliable liberal body.
Washington already looks like many of our locations where opposition to such liberal measures leads to isolation and condemnation. Take Justice Stephen Breyer. You’d think he’d be immune to the mob as one of the most rigorous liberal judges in our history. However, this week Breyer warned of a move to expand the Supreme Court. He also rejected characterizing the current court as “conservative” or ideologically rigid. Breyer was quickly denounced by personalities such as cable news host Mehdi Hasan, who described him as “naive” and called for his resignation. Demand Justice, a liberal group packing in court, warned a billboard on the streets of Washington the next day in Washington. “Breyer, go into retirement. Don’t risk your legacy. “Demand Justice once employed White House press secretary Jen Psaki as a communications advisor, and Psaki was on the advisory board of one of his voting projects.
The commission is a ominous sign that Biden may offer the last institution immune to our impulsive policies. Its composition seems to confirm even the worst of expectations. In fact, it is a lesson in how to pack a body. The group is technically non-partisan, but anything but balanced. Only a handful of the 36 members are considered center-to-right academics. (Again, this is still a better example of intellectual diversity than most faculties in the schools represented, which have few, if any, Conservative or libertarian faculty members.) Liberals make up the vast majority on the commission, and some are outright critics of Republicans and the Conservative majority in the Supreme Court.
The commission’s rapporteur, charged with publishing the final report after 180 days of study through the Supreme Court, is Professor Kate Andrias of the University of Michigan, one of 500 academics who called for Brett Kavanaugh to be rejected. A chairwoman of the commission, a professor at Yale University and a former Justice Department official, Cristina Rodriguez, had also signed the public letter against Kavanaugh. The other chair of the commission is New York University professor and former White House attorney Bob Bauer.
The commission includes individuals such as Laurence Tribe, a Harvard University professor who labeled Donald Trump a “terrorist” and who has committed personal and vulgar attacks on Senate minority leader Mitch McConnell and others, including myself, in the past which he rejects. The tribe once mocked former Attorney General William Barr for his Catholic faith. The only anger Tribe drew from the left, however, was when he described the possible selection of an African American such as then Senator Kamala Harris as vice president as a mere “cosmetic” for the party.
Tribe wasn’t subtle about his sudden interest in court wrapping. After the election, he said: “The time is long overdue for a seriously deliberate plan of action by those of us who believe that McConnell and the Republicans, supported and supported by the Trump movement, give extension of their own power priority over protection our American democracy and the protection of the weakest among us. “
Another Harvard University professor put it more directly. Michael Klarman explained the Senate Republicans’ refusal to uphold Merrick Garland as justice in 2016, even as a trial. He said, “Democrats are not initiating this spiral. They simply respond in kind. He added that Democrats shouldn’t worry about Republicans reacting with their own court package when they return to power. Instead, according to Klarman, Democrats could change the system with an established liberal majority to ensure that Republicans “never win an election again.”
The only hope is that this commission is so one-sided that it is clearly not intended to provide a credible basis for a judicial packaging proposal. Although the group has many respected and thoughtful academics, its composition is unlikely to affect many conservatives or even some moderates. Rather, it could be an effort to defuse the left while the court wrapping scheme is sentenced to death by commission, a popular deadly practice in Washington. Assignments to investigate events or new ideas often turn into a vast political wasteland in which bad scandals or ideas are sent for doom.
The Commission will examine a litany of really crazy ideas to prevent the Conservative majority from deciding on cases, including creating a new specialized court or restricting jurisdiction to remove certain cases from their minutes. There are also calls for time limits – a proposal that could spark potential constitutional issues without a constitutional amendment. Tenure and age limits have long been debated, and many argue that the restrictions (as long as judges are sent to a lower federal court) do not violate the lifetime tenure provision of Article III.
If so, the timing is right. The announcement came almost on the anniversary of the 1937 ruling, when the Supreme Court upheld the constitutionality of a minimum wage law and broke the New Deal electoral bloc. Indeed, contemporary observers have paraphrased Benjamin Franklin to describe the decision as a “change of time” that saved nine because the Supreme Court majority postponement defused calls to pack the bank beyond its nine members.
This commission could now be a time change for Biden. The hope is that he will not have the courage to simply repeat his earlier view that court packaging remains a “bony” idea, but that he can put together a largely liberal commission to effectively kill the system. After all, 180 days isn’t much time to reinvent the Supreme Court, but it’s just enough time to give the pretext of an effort to do so. Unfortunately, this is what we come closest to in government with principles today. In this case, however, the short life span can be a “time problem” that saves nine.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.