Below is my column in The Hill on President Joe Biden’s Commission on the Supreme Court. While the composition of the makeup of the Commission is now known, the true purpose of the Commission remains in doubt.
While the Commission is likely to make recommendations for “reforms,” the genesis of the Commission was to consider the court packing scheme that was widely discussed during the 2020 presidential election. Biden precisely called court packing a “bone headed” and “terrible, terrible idea.” However, he was not willing to confront extreme voices in his own party and this Commission is the result. The hope of many in Washington is that this Commission will give the Administration cover in setting aside the demands to add new members in the short term to create a liberal majority on the Court. If this largely 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 feel the pressure to come up with some alternative substantial recommended change. Over 20 years ago, I recommended the expansion of the Court to 17 or 19 members. However, that recommendation would occur over many years and would not give advocates the short-term majority that they are seeking. That is the difference between reforming and packing the Court. Even a gradual increase would also face considerable opposition in the Senate, particularly out of a lack of trust that a later majority would add a couple of justices and then renege on continued additions to continue to control the majority of the Court. Even former Democratic Majority Leader Harry Reid warned against term limits or seeking to expand the Supreme Court as a dangerous path for Democrats.
Here is the column:
With the establishment of his commission to study the possible 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 United States, and polls have consistently shown the vast majority of Americans oppose the idea. Biden himself once denounced it as a “boneheaded” idea, but that was back in 1983, when there remained a real space in politics for at least the pretense of principle.
Now Biden and others seem to think the Supreme Court must be canceled for its failure to yield to the demands of our age of rage. Many of us were surprised when he pandered to court packing calls in the 2020 primaries. Some of us have called for expanding the court over a lengthy transitional period, but commentators and some Democrats called for an immediate infusion of new justices to give liberals the controlling majority. Unhappy with conservative rulings, Democrats demanded that the Supreme Court be replaced by a much larger and more reliably liberal body.
Washington already looks like many of our campuses, where opposition of such liberal measures results in isolation and condemnation. Take Justice Stephen Breyer. One would think he would be immune from the mob as one of the most consistently liberal justices in our history. However, this week Breyer warned against any move to expand the Supreme Court. He also rejected the characterization of the current Court as “conservative” or ideologically rigid. Breyer was swiftly denounced by figures like cable news host Mehdi Hasan who called him “naive” and called for his retirement. Demand Justice, a liberal group calling for court packing, had a billboard truck in Washington the next day in the streets of Washington warning “Breyer, retire. Don’t risk your legacy.” Demand Justice once employed White House press secretary Jen Psaki as a communications consultant, and Psaki was on the advisory board of one of its voting projects.
The commission is an ominous sign that Biden may be offering up the last institution immune from our impulsive politics. Its composition also seems to confirm the worst expectations. Indeed, it is a lesson in how to pack a body. The group is technically bipartisan but is far from balanced. Only a handful of the 36 members are considered center-to-right academics. (Even that is still a better showing of intellectual diversity than most of the faculties of the represented schools, which have few if any conservative or libertarian faculty members.) Liberals make up the vast majority on the commission, and some have been outspoken critics of Republicans and the conservative Supreme Court majority.
The commission rapporteur, who is tasked with publishing the final report after 180 days of study about the Supreme Court, is University of Michigan professor Kate Andrias, one of 500 academics who called for the rejection of Brett Kavanaugh. One commission chair, Yale University professor and former Justice Department official Cristina Rodriguez, had also signed the public letter against Kavanaugh. The other commission chair is New York University professor and past White House counsel Bob Bauer.
The commission includes such individuals as Harvard University professor Laurence Tribe, who called Donald Trump a “terrorist” and has a history of personal and vulgar attacks on Senate Minority Leader Mitch McConnell and others, myself included, who maintain views that he opposes. Tribe once ridiculed former Attorney General William Barr for his Catholic faith. The only ire Tribe has drawn from the left, however, was when he referred to the possible selection of an African American like then Senator Kamala Harris to be vice president as mere “cosmetics” for the party.
Tribe has not been subtle about his sudden interest in court packing. After the election he declared, “The time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power over the safeguarding of our American democracy and the protection of the most vulnerable who are among us.”
Another Harvard University professor put it in more direct terms. Michael Klarman declared the refusal of Senate Republicans to confirm Merrick Garland as a justice in 2016 was itself court packing. He said, “Democrats are not initiating this spiral. They are simply responding in kind.” He added that Democrats should not worry about Republicans responding with their own court packing when they return to power. Instead, Klarman insisted, Democrats could change the system with a manufactured liberal majority to ensure that Republicans “will never win another election.”
The only hope is that this commission is so lopsided that it is clearly not intended to be a credible basis for a court packing proposal. While the group has many respected and thoughtful academics, its composition is unlikely to sway many conservatives or even some moderates. Rather, it could be an effort to defuse the left while sentencing the court packing scheme to death by commission, a favorite lethal practice in Washington. Commissions are Washington’s great vast wasteland where controversies are often sent to perish with time and exposure.
The Commission is set to consider a litany of truly looney ideas to prevent the conservative majority from deciding cases, including creating a new specialized court or limiting jurisdiction to remove certain cases from their docket. There are also calls for term limits — a proposal that could trigger potential 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 federal court) the limitations do not contravene the life tenure provision of Article III.
If this is the case, the timing is right. The announcement came almost to the day of the anniversary of the 1937 decision where the Supreme Court upheld the constitutionality of a minimum wage bill, breaking the voting bloc against the New Deal. Indeed, Contemporary observers paraphrased Benjamin Franklin to describe the decision as a “switch in time” that saved nine because the shift with the Supreme Court majority was what defused the demands for packing the bench beyond its nine members.
This commission could now be a “switch in time” moment for Biden. The hope is that he does not have the courage to simply repeat his past view that court packing remains a “boneheaded” idea but that he can assemble an overwhelmingly liberal commission to effectively kill the scheme. After all, 180 days is not much time to reinvent the Supreme Court, but it is just enough time to give the pretense of an effort to do so. Unfortunately, that is the closest we get to principled government today. But in this instance, the Commission just may be a “hitch in time” that saves nine.