On Friday, President Joe Biden issued an executive order forming the Presidential Commission on the Supreme Court of the United States. The order is the fulfillment of his pledge on the campaign trial to consider the expansion of the Supreme Court, a court-packing scheme advocated by some Democrats to retake control of the court from its current conservative majority. Even though I have long argued for the expansion of the Supreme Court, I opposed these calls as a raw effort to pack the Court. I have a column out this morning discussing the Commission.
The group is called
“to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
The 36 members include many respected and thoughtful academics. It is also heavily liberal and Democratic. Professor Josh Blackwell notes that, by his count, there are only around seven moderate to conservative members giving an over 2-1 advantage for liberals on the Commission. As Blackwell notes, that is better than many faculties which have only one or two (if any) conservative faculty members. Over the last couple of decades, faculties have purged their ranks of conservative and libertarian faculty members. The result is a diversity of thought that often runs from the left to the far left on faculties. This imbalance is often used in Washington to produce letters with hundreds of law professors universally denouncing conservative nominees or supporting liberal proposals.
Such ideological bias is now an assumption on faculties, panels, and journals. That does not mean that these members will not give serious consideration to these issues. Some of these members did sign the letter seeking the rejection of Justice Brett Kavanaugh or supporting the impeachment of President Trump. However, while those stands are likely to alienate conservatives, such views do not necessarily mean that they cannot do a fair or thorough job.
For the record, I have argued for the expansion of the Court for decades. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.
However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.
This week, many reaffirmed that they want a quick expansion to create an unassailable liberal majority. It is precisely what Ginsburg warned against. When asked about calls to expand the Court, Ginsburg said it would destroy the continuity and cohesion of the Court. She added to NPR: “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
That view was dismissed by Democratic members who declared that control of Congress would lead to control of the Court. House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”
There are also proposals for the creating of entirely new courts or limiting the jurisdiction of the Supreme Court. This parade of horribles will now be the focus of this Commission. The hope of advocates is that they will recommend some form of substantive change but they will face opposition in the 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 opposed to court packing schemes. Yet, there is a smaller percentage that drives both parties in Congress because they have a pronounced impact in primaries. The Commission may offer some political cover to Biden but it is unlikely that many on the far left will be satisfied with cosmetic changes after 180 days.