Below is my column in The Hill on President Joe Biden’s Commission about the Supreme Courton Tuesday. While the makeup of the cosmetics of the Commission is now understood, the legitimate intention of the Commission remains in doubt. While the Commission is likely to produce guidelines to”reforms,” the genesis of the Commission was going to consider the court packing scheme that was widely discussed during the 2020 presidential elections. Biden just referred to as court packing a”bone headed” and”terrible, horrible idea.” But he wasn’t eager to confront extreme voices within his own party and this Commission is the outcome. The expectation of many in Washington is that this Commission provides the Administration cover in setting aside the requirements to add new members at the short term to create a liberal majority on the Court. If this mainly liberal commission recommends against court packing, Biden and the Democratic leadership could shrug and say”well., we tried.” The question is whether the Commission will truly feel the pressure to come up with some alternative considerable recommended shift. Over 20 decades ago, I advocated the expansion of the Court to 17 or 19 members. But that recommendation would happen over several years and wouldn’t give advocates the short-term majority that they are trying to find. That’s the gap between reforming and packing the Court. A slow increase would also face significant resistance in the Senate, especially out of a lack of hope that a later majority would add a few justices and then renege on continued additions to continue to control most the Court. Even former Democratic Majority Leader Harry Reid cautioned against term limits or Attempting to expand the Supreme Court because of dangerous route for Democrats.
Here’s the pillar:
With the establishment of the commission to examine the feasible packing of the Supreme Court, President Biden has adjoined his name to one of the most inglorious efforts of Franklin Roosevelt. Court packing has long been anathema in the USA, and surveys have always shown the vast majority of Americans oppose the idea. Biden himself denounced it as a”boneheaded” thought, but that was back in 1983, if there remained a real distance in politics for at least the pretense of principle.
Today Biden and others seem to think the Supreme Court must be canceled because of its own failure to return to the requirements of the age of anger. Many people were surprised when he pandered to courtroom packing calls at the 2020 primaries. A number people have known for expanding the courtroom on a lengthy transitional time, but commentators and some Democrats called for a direct infusion of new justices to give liberals the controlling majority. Unhappy with conservative rulings, Democrats demanded that the Supreme Court be replaced with a significantly bigger and more reliably liberal system.
Washington already resembles many of the campuses, in which resistance of these liberal measures results in isolation and condemnation. Take Justice Stephen Breyer. One would think he would be immune from the mob among the most frequently liberal justices on the planet. But this week Breyer cautioned against any move to expand the Supreme Court. He also rejected the characterization of their current Court because”conservative” or ideologically rigid. Breyer was swiftly denounced by characters like cable news host Mehdi Hasan who called him”innocent” and called for his retirement. Don’t risk your legacy.” Demand Justice once used White House press secretary Jen Psaki as a communications advisor, and Psaki was on the advisory board of one of its voting projects.
The commission is an ominous indication that Biden may be offering up the previous association immune from our spontaneous politics. Its composition seems to confirm that the worst expectations. Really, it is a lesson about how to pack a body. The group is bipartisan but is far from balanced. Just a handful of those 36 members are considered center-to-right professors. (Even that is still a much better showing of intellectual diversity compared to most of the faculties of those represented schools, that have few if any conservative or libertarian school members.) Liberals constitute the vast majority on the commission, and also some have been outspoken critics of both Republicans and the conservative Supreme Court majority.
Another commission seat is New York University professor and beyond White House counsel Bob Bauer.
The commission consists of these people as Harvard University professor Laurence Tribe, that called Donald Trump that a”terrorist” and also has a history of private and vulgar attacks on Senate Minority Leader Mitch McConnell and many others, myself included, that assert perspectives that he opposes. Tribe once ridiculed former Attorney General William Barr because of his Catholic religion. The sole ire Tribe has attracted in the left, but was referred to the potential variety of an African American like then Senator Kamala Harris to be vice president as mere”cosmetics” for the celebration.
Tribe hasn’t been subtle about his sudden fascination with courtroom packing. Following the election he announced,”The time is overdue for a badly thought of plan of action from those people who believe McConnell and Republicans, abetted by and abetting that the Trump movement, have prioritized expansion of their own power within the partitioning of our democracy and the security of their most vulnerable who are among us.”
Another Harvard University professor put it into more immediate terms. Michael Klarman announced the refusal of Senate Republicans to affirm Merrick Garland because of justice in 2016 was court packing. He explained,”Democrats are not initiating this spiral. They are simply reacting in kind.” He also added that Democrats should not be concerned about Republicans reacting with their own courtroom packing if they return to power. Instead, Klarman insisted, Democrats could alter the system with a manufactured liberal majority to guarantee that Republicans”will never win the next election.”
The only real hope is that this commission is so lopsided that it is obviously not meant to be a plausible basis for a court packing suggestion. While the group has many thoughtful and honored professors, its makeup is unlikely to sway many conservatives or even some moderates. Instead, it could be an effort to defuse the abandoned while sentencing the court packing strategy to death from commission, a popular lethal practice in Washington. Commissions are Washington’s great vast wasteland in which controversies are often sent to perish with exposure and time.
The Commission is set to think about a litany of genuinely looney suggestions to avoid the conservative majority from determining cases, including developing a new specialized court or restricting jurisdiction to get rid of certain cases in their docket. There are also calls for term limits — a proposition that could trigger possible constitutional questions absent a constitutional amendment. Term and age limits have long been discussed and many argue that (so long as the justices are sent to lower national court) the limitations do not contravene the lifetime tenure supply of Article III.
If that is the situation, the timing is ideal. Indeed, Contemporary observers paraphrased Benjamin Franklin to explain the conclusion as a”switch in time” that saved nine since the change with the Supreme Court majority had been what defused the requirements for packing the bench past its nine associates.
This commission may be a”switch in time” moment for Biden. The expectation is that he doesn’t have the courage to simply replicate his past opinion that court packing remains a”boneheaded” idea but that he can assemble an overwhelmingly liberal commission to effectively kill the strategy. After all, 180 days isn’t much time to reinvent the Supreme Court, but it is just enough time to give the pretense of the effort to achieve that. Regrettably, that is the nearest we get to principled authorities now. However, in this instance, that the Commission simply may be a”hitch in time” that saves nine.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You may find his updates online @JonathanTurley.