Biden’s Supreme Court Commission Is Large and Progressive. And Mostly Pointless.

During the Democratic presidential primaries, Joe Biden was one of the few candidates against packing the Supreme Court, among other radical “reform” proposals. Bernie Sanders, the other finalist for the nomination, happened to be another, recognizing that adding additional seats for political reasons would just lead to Republicans doing the same thing at their next opportunity. But then in the general election campaign, Biden played coy, not wanting to alienate activists who saw his candidacy as nothing but a vehicle for defeating Donald Trump. Saying that the judiciary was “out of whack,” he proposed a commission to study possible reforms.

Well, after a leak about a handful of putative members in January, the White House finally revealed that Supreme Court commission last week. There are three striking things about it: It’s big (36 members), progressive (about a 3-to-1 ratio), and academic (all but three are professors, plus two retired judges who teach part-time). 

The size of the commission will make hearings unwieldy, not to mention the difficulty of trying to write a report by super-committee. The ideological skew won’t give the group much credibility with Republicans, though the media will surely use the presence of the token non-progressives to paint any recommendations as bipartisan and noncontroversial. And the tilt to law school faculty will make it easier to dismiss the commission’s work as ivory-tower pontification with little relevance to the real world.

The commission’s membership and its order to “closely study measures to improve the federal judiciary” does nothing to dispel the perception that such presidential actions are little more than kicking cans down the road. The administration no doubt hopes that these issues will be less central when the eventual commission report comes out, and then that report can be quietly shelved, with action only on a technocratic suggestion like adding lower-court judgeships. Indeed, it’s quite possible that the Supreme Court won’t make too many waves at the end of its term in June, both because John Roberts and Brett Kavanaugh (the middle of the court) don’t want to attract political attention and because the docket doesn’t have as many blockbusters as most years. The biggest flashpoint is the case of Philadelphia’s disqualification of Catholic Social Services from adoption/foster care for not placing kids with same-sex couples—though if the court agrees to take up the Harvard affirmative action case (which wouldn’t be decided until June 2022), that could increase progressive calls for restructuring.

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  • "The opposition to Trump’s nominees was part of the continued refusal to accept the 2016 election"

    Was not even holding hearings on Garland a refusal by Republicans to accept the 2012 election?

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  • So it's pointless. Let it be pointless but meet a campaign promise. Seems like nothing to get up and bothered about then.

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  • Republics do well to constitute a rainbow of commissions and assemblies. Semi-officially, they survey the mental geography of our contests. They furnish formal “notice” of consequences, which gives people the ability in the future to say, “We told you so.” Commissions don’t write laws, but they make templates. What would fiscal responsibility and reform look like, as a “bipartisan” effort? The Simpson-Bowles Commission presented an option, and everyone said, “meh.” Also, commissions work out in the open, which makes them more salutary than reactionary efforts like the Federalist Society or ALEC.

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    1. All true. Most of the new initiatives in the HR 1 on new voting initiatives came from a 2005 commission studying our voting laws. Unlike a good wine, it did not age well ...

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  • I don’t think the conservative crowd appreciates just how raw and bothered the left side of the aisle is about the broken judicial nomination process and the Constitutional travesties that got us here the past decade. The ‘conservative judicial project’ has amounted to an attack on our nomination process and resulted in an unfair swing of 1 Scotus seat and approx 50 lower court seats including the ‘balance of power’ on over half the circuit courts.

    That the Federalist society replaced the Senate’s role to “Advise and Consent” the past 4 years is a sickening corruption also. Just imagine if a left wing senate and administration relied on “Alliance for Justice” or another similar group to vet all their nominations, then just rubber stamped them through the Senate.

    And in fact, our judicial structure could use a revamp, even aside from the ‘balance of power’ issues. There probably should be a scotus justice for each circuit court. There probably should be term limits. There probably should be an independent court and prosecution system for politically sensitive cases (like Donald Trump or Hillary Clinton or Matt Gaetz or even Jeffrey Epstein and Grislaine Maxwell.)

    The public IS losing faith in the courts, and they have already for Congress and the Executive (at least whenever the other team is in power.) we do need meaningful reform and I hope this commission makes some bold m, carefully considered suggestions to help right our ship.



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    1. The problem I see with this argument is that it's primarily related to the perception that a left wing court would deliver policy wins denied by the current right-dominated court. That's possible, but it truly risks compromising the moral authority of the court to deliver such judgements. It's also a mistake to conflate the conservative judicial philosophy with right-wing activism. Textualism cuts against right wing agendas such as expansive interpretations of the 2nd amendment just as much as it undermines left wing projects that would gain from a "living constitution" approach. Those Federalist-approved judges also held the line rather firmly against Trump's post-election shenanigans.

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      1. Although I don’t agree with most of his arguments, Ed P identifies a legitimate grievance: the Senate’s refusal to hold an up-or-down vote on Merrick Garland. That was a despicable stunt that continues to poison the well. And I think Neil Gorsuch is a fine justice who has already surprised some by his even-handed application of textualism.

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      2. Uhhh, George. " that a left wing court would deliver policy wins denied by the current right-dominated court." ??

        How about New York Times v. Sullivan ...... Roe v Wade ....... Miranda v. Arizona ..... Bates v Arizona ... and an endless parade of cases from the Earl Warren court. Most were new policy that had never seen debate or a vote in the Congress.

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        1. NYT v Sullivan was 9-0 - not sure how that makes it an example of a left wing policy win. Bates v Arizona also a 1st amendment case that was hardly a left-right split. As for the others, that’s kind of my point: these are policies that had never been debated in a legislature, and should’ve been. There’s been a fairly strong argument that the fight over abortion rights has been essentially frozen in amber by that court decision, where it otherwise been trending towards widespread societal acceptance. That’s the key - political change needs to lead the legal change. That’s why gay marriage hasn’t been a similar hot button issue after Obergefell. If that decision had been handed down in 1993, it’d be another rallying cry for the right.

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          1. George, I have misunderstood you. Sorry.

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      3. It's a mistake to conflate liberal judicial philosophy with left-wing activism and yet that's what the 'right' generally does as well. It goes both ways. And the decision in Heller - that conservative judicial philosophy will hold against right-wing activism, in say expansive gun rights - puts a dent in your argument. Heller after all, overturned long-standing precedent and added "text" to the 2A that isn't there - there isn't a provision in the amendment for as Justice Stevens said "hunting and personal defense".

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        1. Heller's an interesting case to bring up in this context: it's an unusual and dramatic departure from an originalist doctrine for somebody like Scalia, and critics usually like to point to Stevens' dissenting opinion that actually articulated an originalist argument. So, which would you rather have dominate the court: a living tree philosophy that would deliver more decisions like Heller that overturn existing precedent, in the hopes that they deliver more decisions you agree with; or an originalist philosophy that puts a brakes on such things even if the occasional decision breaks with it in an obvious and highly criticized fashion?

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          1. I honestly don't know. That's a really interesting question. I'm not one to be hysterical about the Supreme Court (I've studied enough history to know that judges are not the activists either side claims they are, even if the decisions they come to seem wrong to me). I just take issue with the idea that conservative judicial philosophy is 1) the only 'correct' one and therefore if you don't subscribe to it, you're an activist judge and 2) that it's only those on the 'left' who think a court chosen by them (more liberal leaning, Democrats, etc) would be more inclined to reach decisions more to their liking when the 'right' thinks the same thing - otherwise, it wouldn't matter which judge was chosen, and McConnell wouldn't have cared that Obama got to replace Scalia so long as the judge chosen was well-qualified, in good standing with the bar, etc. There wouldn't be a Federalist Society handing out names.

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  • Sir Humphrey Appleby: What about a Royal Commission?

    The Prime Minister: That's more like it. It won't report for three years. And if we put the right people on it they won't agree about anything important. Right, a Royal Commission.

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  • “In this telling, Neil Gorsuch is an illegitimate justice because he “stole” Merrick Garland’s seat and Amy Coney Barrett should never have been confirmed so close to the 2020 election”

    This is at the heart of this whole drama. Republicans were hypocritical and opportunistic in preventing the Garland nomination from coming to a vote, and then putting Barrett in place.

    But this is only one Supreme Court seat. Either you seat Garland and Barrett because you believe a President is a President until the end of the term (my belief), or you don’t seat either, because it was too close to an election.

    Either way, conservatives only gained ONE seat by these maneuvers. Trump would have had one appointment even if McConnell had been consistent - either Gorsuch or Barrett would have been approved. So this whole “court packing” thing from Democrats is exaggerated. We’re talking one seat. And as wrong as I think the GOP was in this, I suspect Democrats would have done the same if the roles were reversed.

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    1. A president's nomination to the court has to be confirmed by the Senate. Period. If people want something different then amend the constitution!! As Biden says, it is not absolute ...

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    2. Don't forget that they also feel aggrieved about Kavanagh. They can't question the timing of the appointment, but many are convinced that he's an unworthy appointment forced in by Trump and the Republicans after their last minute full-court press to generate a haze of sexual misconduct allegations.

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      1. That’s very true. But I wonder if the Democrats at the top Aren’t aware that the Brett Kavanaugh hearings rub some people the wrong way and might’ve cost them a better showing in both 2018 and 2020

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    3. When there is only 9 justices, 1 seat is a huge deal. I’m fairly sure if the roles were reversed it would not seem like such a little thing.

      And it was not just the supreme court. McConnell and gang obstructed every Obama judicial nominee, in a corruption that resulted in a swing of over 50 judges, and the balance of power on most of the circuit courts.

      This was all strategized and so forth. It was no accident or politics as usual. Imagine how it would feel of the roles were reversed.

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  • This whole thing is a joke and shame on President Biden for doing it.

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    1. Congress does its best work when it doesn't work.

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      1. Yes. If only it didn't contribute to polarization while not working and the divide that keeps creeping up on us all culturally.

        If congress actually just went, and slept in their chairs all day, and never went on CNN or FOX news, and just went home, and they did that for the past 50 years except for times of war. Cool.

        They don't. They do nothing and continue to create divides among us, and then when terrible events happens...

        As Rahm Emuanel said, "Never let a crises go to waste."

        So it's a seesaw of them doing nothing good, then do many things terrible I guess.

        Like trying to expand the courts, even if it's just make believe pretend. After all, if I make believe pretend to take away the first amendment, then enact and say, "it's just a commission guys", shouldn't we be frustrated that they even tried it at all in the first place?

        Weren't many of us frustrated when Trump, after losing Nov. 6th, and many court cases all the way to Dec. 14th when there was legally nothing he could do anymore, annoyed when he continued to do fake challenges? Asinine from Trump.

        Just as this is an asinine move by Biden. This move is just bad by all accounts.

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    2. Why? What do you want him to do?

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  • I've long thought that commissions like these are easy ways to feed the base and do nothing.

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