On Friday, President Joe Biden issued an executive order establishing the Presidential Commission at the United States Supreme Court. The order is the fulfillment of his campaign promise to consider expanding the Supreme Court, a legal process advocated by some Democrats, to regain control of the court from its current Conservative majority. Although I have long advocated the expansion of the Supreme Court, I resisted these demands as a raw effort to grab the Court. I published a column this morning discussing the Commission.
The group is called
“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. “
Its 36 members include many respected and thoughtful academics. It’s also heavily liberal and democratic. Professor Josh Blackwell notes that by his count there are only about seven moderate to conservative members, giving the Liberals an advantage of over 2: 1 on the commission. As Blackwell notes, this is better than many faculties that have only one or two (if any) Conservative faculty members. Over the past few decades the faculties have cleaned up their ranks of conservative and libertarian faculty members. The result is a diversity of thoughts, often left-to-far left in faculties. This imbalance is often used in Washington to write letters to hundreds of law professors who denounce broadly conservative candidates or support liberal proposals.
Such an ideological alignment is now an adoption for faculties, panels, and journals. This does not mean that these members will not seriously consider these issues. Some of these members signed the letter calling for Justice Brett Kavanaugh’s rejection or support for President Trump’s impeachment. While these classes are likely to alienate conservatives, such views do not necessarily mean that they cannot do a fair or thorough job.
I have been in favor of expanding the Court of Justice for decades. My suggestion was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two judges taking turns sitting in lower courts each year). My review of courts of similar size (including courts of appeal that sit “en banc”) shows that a single lawyer is less stagnant than swing voting and has greater intellectual diversity.
There was one critical catch, however. The increase to 17 or 19 judges would come slowly so that no president could appoint more than two additional judges in one term. The obligation for a full court would be about two decades. That is the difference between reform and packing a court.
This week, many reiterated their desire for rapid expansion to create an unassailable liberal majority. This is exactly what Ginsburg warned about. When asked about requests to expand the court, Ginsburg said it would destroy the continuity and cohesion of the court. She added to NPR, “If anything made the court appear biased, it would be – one side says, ‘When we are in power we will increase the number of judges so we have more people who would vote like this, as we want it. ‘”
This view was rejected by Democratic members who stated that scrutiny of Congress would lead to scrutiny of the Court of Justice. House Justice Committee chairman Jerry Nadler also stated that “the new Senate should act immediately to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., Tweeted, “If (the Senate) votes in 2020, we’ll grab the court in 2021. It’s that simple.”
There are also proposals to create entirely new courts or to limit the jurisdiction of the Supreme Court. This parade of the terrible will now be the focus of this commission. The hope of the proponents is that they will recommend some form of substantive change, but face opposition in Congress, which (unlike the Commission itself) is almost evenly divided.
These calls may appeal to the most extreme voices in the Democratic Party, but the public is overwhelmingly against court wrapping plans. However, there is a lesser percentage that drives both parties in Congress because they have a significant impact on the primaries. The commission may offer Biden some political coverage, but it’s unlikely that many on the far left will be satisfied with cosmetic changes after 180 days.