From Kalvis Golde
on January 26, 2021
at 1:33 p.m.
Some Democrats call for reforms to control the Senate (Kalvis Golde)
Immediately after Judiciary Amy Coney Barrett was appointed to the Supreme Court last October, then-presidential candidate Joe Biden pledged, if elected, to set up a bipartisan commission to review proposals for judicial reform. The announcement was a nod to Democratic voters who were angry about the imminent replacement of liberal icon Justice Ruth Bader Ginsburg days before the November elections. But who would be on the commission? And does it have any teeth?
These questions – and the discussion of judicial reform in general – largely faded into the background as the elections progressed. But now Biden is in the White House, and the Democrats hold a wafer-thin majority in the Senate after two surprising victories in the Georgian Senate. Now that the Democrats are in control, some Liberals are calling for swift action to reform the Supreme Court, and some Republicans are proposing a constitutional amendment that puts the number of judges at nine.
Against this political backdrop, the Brookings Institution hosted a virtual webinar on Monday to assess whether the new administration will or can answer calls for Supreme Court reform. The speakers also highlighted proposals on federal justice in general and addressed Biden’s outstanding commission.
Eric Holder, Attorney General under President Barack Obama, gave a brief keynote address. Holder approached the judicial reform discussion through a lens of partisan misalignment. It is “painfully clear,” he said, “Democrats and progressives are … uncomfortable with acquiring and using power.” In contrast, Holder referred to then-Senate Majority Leader Mitch McConnell’s refusal to consider Obama’s appointment of Merrick Garland to the Supreme Court in a presidential election year, and his subsequent attempt to validate Barrett in the run-up to the next presidential election.
These measures have led to a “legitimacy crisis” at the Supreme Court, Holder said. “Republican behavior deserves an answer – a measured answer.”
The panellists disagreed on which reforms such a response could prioritize and how likely it is that a move could overcome procedural and political hurdles.
Two suggestions received the greatest attention. Christopher Kang, co-founder of progressive advocacy group Demand Justice, found help adding seating to the court, known as court wrapping. Kang advocated court packing as a remedy and a natural inference to the Senate justification of Republicans for the Garland / Barrett saga: “Nothing in the Constitution banned it.” Professor Daniel Epps of Washington University in St. Louis Law was more skeptical. Although Epps believed that the court was packing the “clearest constitutional reform”, he feared that the public might see this as “problematic”. Epps focused on tenure limits, particularly 18-year terms with regular vacancies every two years, as a solution to the trend that worries him most: the growing urge on both sides to bring “ideologues” to justice.
Duke law professor Marin Levy put the conversation in a broader context. Levy’s research – highlighted recently by Amanda Frost on SCOTUSblog – shows that court packaging is already a reality at the state level. Twenty states, she said, have passed laws to expand their state courts of last resort – two of which have succeeded, Georgia and Arizona, both controlled by Republicans. Even if the wave of state legislation could demonstrate support for a “modest expansion” of the US Supreme Court, Levy said, there is “a very strong case for focusing on the lower courts, and especially the appeals courts.” U.S. Circuit Courts expanded every decade from 1890 to 1990 to accommodate growing case numbers, Levy said, but have been the same size for 30 years. In the meantime, the number of cases has increased “between 15 and 20%”. The Supreme Court settles about 70 cases a year, Levy noted; The appellate courts together process around 55,000.
However, any type of reform will face obstacles. The panelists also discussed their seriousness.
Molly Reynolds, a senior governance studies scholar at Brookings, puts the Senate trial at the fore in the face of the 50:50 split between Democrats and Republicans, with Vice President Kamala Harris earning the potential final vote. “Right now, the biggest obstacle to judicial reform legislation is” the filibuster’s survival in the Senate, “said Reynolds, who can keep the Senate in business until the other side gets 60 votes to end it (Reynolds made a rare exception from the 60-vote threshold: the confirmation of federal judges, reduced to a simple majority by the Democrats for the Circuit Courts in 2013 and by the Republicans for the Supreme Court in 2017 by the Republicans for the Supreme Court. What is the “problem causing the problem”, wondered Reynolds that could convince Senate Democrats to abolish the filibuster? Kang said judicial reform itself was unlikely, but urged Democrats to prioritize should the filibuster fall – particularly as judges may be asked about the constitutionality of any To decide legislative reforms.
In the end, speculation about judicial reform led to speculation about Biden’s commission.
Pointed out that “this is not our first commission rodeo,” with previous iterations in the 1970s, 1980s, and 1990s, Levy hailed Biden’s commission as a “good thing” while confessing uncertain whether it would actually lead to change becomes. If he had to “just guess,” Epps said, the commission would most likely come up with nothing more than a “Wishy Washy” recommendation for term restrictions. But Kang was more steadfast. He urged the president, who has already promised to nominate a black woman to the Supreme Court, to give priority to demographic and professional diversity in the commission. “Very confident, alas,” that future Supreme Court rulings will arouse progressive anger, Kang said the real job of Biden’s commission will be “to set the table properly” so that Congress can respond.