Category: Supreme Court

“The Risks of Court Expansion are Considerable”: Biden Commission Leaves Court Packers Empty-Handed and Enraged

Below is my column in USA Today on the resignation of conservative members of President Joe Biden’s Commission on the Supreme Court.

Here is the column:

Internet progressives went into renewed outrage last week with objections to the “abomination” and “fixed” game being played in Washington. The subject of these attacks was not election fraud or infrastructure but the preliminary findings of the Biden Presidential Commission on the Supreme Court, which warned that “the risks of court expansion are considerable.”

Despite being composed primarily of liberal members, the commission is now being attacked as a tool of the status quo. Ironically, much like the court itself, the commission is being declared invalid because it dared to reach conclusions different from these activists. Unlike on the court, activists apparently succeeded in getting two conservative members to resign because of the recommendations.

When the commission was formed, I wrote that it did not look like a serious effort to pack the court. Rather it looked like a standard “death by commission” move by President Joe Biden. The reason was not that it was too moderate but too liberal. If Biden seriously wanted to pack the court, this commission would hardly be credible with many Americans given the small number of members in the center or on the right. As the commission acknowledged, “A majority of the public does not support court expansion.”

Cable news regular and Nation writer Elie Mystal declared on Twitter, “When you put no court reformers on your court reform commission, you end up with no court reform. This game was fixed from the moment @JoeBiden named the commission.” He denounced the whole effort as “designed to produce no change.”

In reality, the commission was divided, with some members supporting court packing and two of the few conservative members suddenly resigning Friday.

However, even if the backlash results in a purging of the report or the commission, Mystal could be partially right.

The “death by commission” tactic is a common substitute in Washington for actual political leadership. During the presidential campaign, Biden repeatedly refused to state whether he opposed packing the court. He said he would only answer the question after the election, a truly bizarre position that many in the news media then just shrugged off.

As a senator, Biden was eager to express his views when it was politically popular to oppose court packing. He denounced it as a “bonehead” and “terrible, terrible” idea. Now, however, those words would come at a cost. So Biden ordered up a commission to put space between his principles and his politics. To guarantee its placebo effect, the White House stressed that the commission would only make preliminary recommendations.

The strategy did not work in this case because Biden’s acquiescence had fueled a well-funded movement of groups like Demand Justice (which has run a billboard truck in Washington calling for the immediate retirement of Justice Stephen Breyer). For months, progressives have made court packing the litmus test for whether someone truly supports democracy. Now to their outrage, the commission wrote court expansion “could undermine the very goal of some of its proponents of restoring the court’s legitimacy. … The reform – at least if it were done in the near term and all at once – would be perceived by many as a partisan maneuver.”

If the White House hoped that the commission would serve as a type of primal scream session to release rage, it didn’t work. That was evident in the response to the initial report. The “abomination” described by the Slate writer Mark Joseph Stern is that the commission suggested that “today’s Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy.”

In other words, this commission is itself in need for reform like the court itself. It was not stacked enough or simply ineffectual because it failed to reach the supposedly “right” conclusion.

The commission did appear to vaguely support term limits for Supreme Court justices. While the limits would raise some constitutional questions, there is an argument that federal judges are only guaranteed lifetime tenure, not tenure on a particular court. However, the resulting turnover would toss out liberals and conservatives alike when groups are demanding the instant addition of four liberal justices to force a new majority on the court.

What the commission did not want to address is the fundamental flaw in the court reform movement. Most of the calls to expand the court have been based on the view that the court is “broken” because it is reaching the wrong conclusions. In other words, the court would not function correctly until it ruled “correctly.” After all, when discussing the principle of judicial review, members like Rep. Alexandria Ocasio-Cortez, D-N.Y., asked, “How much does the current structure benefit us? And I don’t think it does.”

Biden’s effort to use a commission to kill this “bonehead idea” was designed for a different time when you could let causes die from an abundance of time and talk. This is the age of rage. The commission was designed to placate radical demands for change, but it is now denounced as an “abomination” like the institution that it was tasked to study.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

It is not even clear that throwing the court under the bus would placate these activists. As French journalist Jacques Mallet du Pan famously observed about the French Revolution, “Like Saturn, the revolution devours its children.” That counts for courts, commissions and even presidents.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

“Youthful Folly”: Katie Couric Under Fire For Deleting Ginsburg Quotes Against NFL Kneelers

We have been discussing the implications of the rising advocacy journalism movement where reporters actively frame or omit facts to achieve social or political agendas. This week there is an astonishing story about the suppression of newsworthy facts by a leading journalist, Katie Couric. Notably, Couric outed herself in her new memoir by recounting how she cut out a quote from the late Ruth Bader Ginsburg in a 2016 interview concerning the kneelers at NFL games. What is even more troubling is that journalists like New York Times columnist David Brooks allegedly encouraged her to do so. Continue reading ““Youthful Folly”: Katie Couric Under Fire For Deleting Ginsburg Quotes Against NFL Kneelers”

Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech

This week, the Supreme Court will again assemble for a new term and pundits and politicians are already handicapping the cases. This term however has more drama and tension as Democrats call for packing the Court with an instant liberal majority and others attack its members in anticipation of opinions that have yet to be written. The reality is summed up in one of my favorite stories about Supreme Court Justice Oliver Wendell Holmes when he was on a trip to Washington. Holmes forgot his ticket but the train conductor reassured him, “Do not worry about your ticket. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is, where am I going?” Continue reading “Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech”

“They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law

Modern justices have long chafed at the restraints of judicial ethical rules about public commentary. The late Ruth Bader Ginsburg was celebrated as “notorious” due in part to her controversial public speeches and discussions of pending or expected cases before the Court. Despite my long criticism of this trend, I was still taken aback by comments of Justice Sonia Sotomayor at an event organized by the American Bar Association. In her comments, Sotomayor appeared to call for political campaigns and discussed a matter just before the Court. Despite the discussion of the case and political opposition from a sitting justice, the ABA members were silent as were the many liberal activists who have been denouncing the Court as too “political.” Continue reading ““They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law”

ACLU Celebrates Ginsburg’s Legacy by Editing Out Her Actual Words as Offensive

The American Civil Liberties Union had a curious way of honoring the late Supreme Court Justice Ruth Bader Ginsburg this week by editing out her words — removing offensive references to “woman” and “she.”  I expect that Ginsburg herself would have had little patience with such woke revisionism. Continue reading “ACLU Celebrates Ginsburg’s Legacy by Editing Out Her Actual Words as Offensive”

Berkeley Law Dean Calls Conservative Justices “Partisan Hacks”

Erwin Chemerinsky, dean of the UC Berkeley School of Law, has published a blistering opinion editorial entitled “Are Supreme Court Justices ‘Partisan Hacks’? All the Evidence Says Yes.” The column is unfortunately the latest example of how rage has replaced reason in our discussions of the Court. Chemerinsky previously declared  that “Congress would be totally justified in increasing the size of the court.” He has insisted that court packing is “the only way to keep there from being a very conservative Court for the next 10–20 years.”

Continue reading “Berkeley Law Dean Calls Conservative Justices “Partisan Hacks””

Our Crisis of Faith on Constitution Day

Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves.  Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.

Continue reading “Our Crisis of Faith on Constitution Day”

The New Federalist Party: Biden Moves Forward With the Greatest Federalization Push Since Adams

President Joe Biden has long pledged to “build back better” but in the last few months it has become clear that his transformative plans go beyond mere infrastructure and extend to our very structure of government.

From abortions to elections to rents, Biden is seeking to federalize huge areas to displace state law. Not since John Adams and his Federalist Party has the country faced such a fundamental challenge to our system of federalism. Continue reading “The New Federalist Party: Biden Moves Forward With the Greatest Federalization Push Since Adams”

“What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing

Justice Stephen Breyer has been a target of liberal groups for months as billboards and commentators call for his immediate resignation. It has backfired with Breyer pushing back on such pressure and reaffirming that he will stay on the Court so long as he is capable of carrying out his duties. Breyer has also opposed the same groups and a number of leading Democrats pushing for court packing.  Breyer just reaffirmed his position (and that of other justices like the late Ruth Bader Ginsburg) in opposition to court packing.

 

Continue reading ““What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing”

“The Light is Better Here”: Garland Pledges To Protect Abortion Clinics From “Attack”

The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law

Magnum Chaos

Below is my column in The Hill on reaction to the refusal of the Supreme Court to enjoin the Texas abortion law. The order of the Court expressly did not reach the merits and certainly did not, as claimed, overturn Roe v. Wade. The Texas law is not even the greatest threat to Roe. Not only is there a pending case on the docket of the Court that has long been viewed as a serious threat to Roe, but the White House and the House of Representatives are threatening immediate actions that could also create new challenges for pro-choice litigants.

Here is the column: Continue reading “The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law”

Supreme Irony: Polls Show Drop In Approval of the High Court Despite Unanimous and Non-Ideological Decisions

The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law

Below is my column in The Hill newspaper on the renewed calls for the investigation of Justice Brett Kavanaugh.  The often over-heated coverage however omits key factual and legal context for a new report.

Here is the column:

Continue reading “The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law”

Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation

Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations.  The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.

Here is the column:

Continue reading “Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation”

Supreme Court Strikes Down California’s Donor Disclosure Law

In the final decision of the Supreme Court before its summer break, Chief Justice John Roberts delivered a major ruling striking down the California law requiring the disclosure of donors for charities. The law attacked so-called “dark money” but the Court ruled that the state was curtailing free speech in a 6-3 decision. Continue reading “Supreme Court Strikes Down California’s Donor Disclosure Law”