The Sixth Rule of Court Packing is Appoint A Commission To Recommend Court Packing

Biden: "If elected, what I will do is I'll put together a national commission."

The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

The fourth rule of Court packing is accuse the Republicans of Court packing.

The fifth rule of Court packing depends how Republicans handle it.

The sixth rule of Court packing is appoint a commission to recommend court packing.

Watch more of @NorahODonnell's interview with Joe Biden, Sunday. pic.twitter.com/wJmb8MatVg

— 60 Minutes (@60Minutes) October 22, 2020

Biden on 60 Minutes:

"If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack — the way in which it's being handled and it's not about court packing. There's a number of other things that our constitutional scholars have debated and I've looked to see what recommendations that commission might make."

Biden continued: "There's a number of alternatives that are — go well beyond packing … The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations."

Comments

[Josh R]

It is highly unlikely such a commission would recommend adding members to the Court (except perhaps as suggested by Jack Balkin).

[dwb68]

First of all if you think that the commission will be balanced, you are naive.

Second, the commission will recommend whatever the Democrats want it to recommend, then hide behind the "blue ribbon panel" of experts as they pack the courts.

[Dilan Esper]

You are dead wrong about this. Not only is this an attempt by Biden, who doesn't like court packing, to punt the issue, it's an obvious attempt to do so.

And it's deviously smart: the Supreme Court will make decisions early in a Biden term knowing this commission is hanging over it.

[Life of Brian]

You are dead wrong about this. . . . the Supreme Court will make decisions early in a Biden term knowing this commission is hanging over it.

If it's so blazingly obvious that the commission will amount to nothing, what exactly would be hanging over the SCt?

[M L]

He's not wrong, and neither are you. I think you are both right.

[Bob from Ohio]

"deviously smart: the Supreme Court will make decisions early in a Biden term knowing this commission is hanging over it."

And people think I am result oriented and reject norms.

You are openly applauding a president blackmailing the supreme court.

Of course that triggers a GOP response, a pre-emptive packing next time. Good to see you approving the undermining of the court.

[Rev. Arthur L. Kirkland]

What would a "pre-emptive packing" be?

[EscherEnigma]

Blocking a SCOTUS nominee for almost a year to hold it open for the next Republican president, obviously.

[bernard11]

blackmailing ??

[Bob from Ohio]

"make decisions early in a Biden term knowing this commission is hanging over it"

extorting? coercing? intimidating? threatening?

[bernard11]

None of the above.

The commission is not "hanging over" the court, unless you see the court as a branch controlled by Republicans who want to maintain their majority.

But then that means they don't want to be umpires at all, but active players in the game.

[Dilan Esper]

I'm not applauding. I'm simply saying it makes sense from Biden's perspective.

[dwb68]

lol. If he is punting, its only until Pelosi 25th amendments him and President Kamala can nominate socialists to the Sct.

The only purpose of the commission is to make up his mind for him. I hope people are smarter than to believe this nonsense about a commission, but its 2020.

[Brett Bellmore]

If he's opposed to packing, why did he refuse to say he was opposed to it? It would have been easy enough to do.

The logical conclusion is that he isn't opposed to packing.

[Josh R]

Perhaps he doesn't want to piss off the activist base of the Democratic party?

[bernard11]

If he’s opposed to packing, why did he refuse to say he was opposed to it? It would have been easy enough to do.

The logical conclusion is that he isn’t opposed to packing.

If he's for packing why did he refuse to say he was for it? It would have been easy enough to do.

The logical conclusion is that he is opposed to packing.

[Jerry B.]

So, let’s see. Biden said court packing was a bad idea, then that it might be a good idea, then that he’d tell us later, and now is trying to dodge any decision by appointing some “bi-partisan” commission to take the blame if it doesn’t turn out well.

What decisive leadership.

[Bored Lawyer]

Yes, those teleprompters will display anything you type into them. Even if it contradicts what was typed in last week.

[Deontologist]

I like the politics of triangulation.

I'd rather have someone in charge with their finger on the pulse of the mainstream rather than someone who insists on sticking to their guns even after a shift in public opinion.

That being said, I doubt that an actual, bipartisan commission would recommend court packing. Furthest they'll go is to likely recommend term limits. Which is much more platable and acceptable.

[Jerry B.]

Of course, that probably requires a Constitutional Amendment, which has zero chance.

[Deontologist]

Perhaps the best outcome: Biden can tell the extreme left that at least he tried to address the "issue" of the Supreme Court, while the independents, moderates, and right-wingers can take comfort in that he didn't actually destroy the Supreme Court by expanding it.

[Deontologist]

Not to mention that such a commission, if actually created, would at least sow the seeds for term limits by introducing the concept into broader public discourse, outside of the echo chambers of law blogs.

[Schroeder4213]

Not necessarily. You could potentially redefine the position and rotate them to the circuit courts after their term. Early on in the country's history, SCOTUS judges used to "ride circuit." I doubt that it would be unconstitutional if you did it that way.

[SMP0328]

When Justices used to ride circuit they remained Justices. Circuit riding was simply part of the job of being a Justice back then.

[EscherEnigma]

Eh.

I think a lot of people (not politicians, actual people) are tired of the SCOTUS fights. So if an actual bi-partisan proposal came out on how to reform appointments to the court, I'm not sure states would reject it.

So out-right partisan court-packing ideas? Wouldn't fly. But plans that don't give advantage to either party, and works to de-politicize the appointments to the court (through a number of various ways)? I could see folks going along with that.

[MatthewSlyfield]

"But plans that don’t give advantage to either party, and works to de-politicize the appointments to the court (through a number of various ways)? I could see folks going along with that."

At least until the folks wake up and realize that while the commission slightly re-arranged the political deck chairs, the commission didn't actually make things any less political.

[BadLib]

Not surprising. As far as I can tell, January 21, 2021 will be the first full day in his life that Biden has had a "buck stops here" job. He's never been a mayor, governor, business owner, or CEO.

(Although it appears that he may have been referred to as "chairman" by some of his "business partners" in recent years. However, since Biden has told us he never talked with some of these people about business, presumably the term "chairman" is some sort of inside joke - which I'm sure Biden will explain and put to rest in tonight's debate.)

But I have great confidence in him as POTUS as he's shown much flexibility over his career and I'm confident he can learn on the job. As well, he's young (in geological terms) and energetic. I'm sure by the end of his fourth term he will have gotten the hang of making decisions and taking full responsibility for them - but for the first three terms, expect a lot of "bipartisan commissions" (probably members of which will be selected by AOC) to make decisions for him.

[Allutz]

I thought he was referred to a "bagman" by his business partners.

BADUM

[JohnSteed]

I've got some reform ideas:
1) Put together a list of pre-approved (by the Senate or the Judiciary committee) candidates for lower court vacancies, and let the President select from that list for fast-track confirmation, while the President can choose to select people not on the list for a longer confirmation process;
2) Break up the Ninth Circuit;
3) Eliminate "Senior" status for judges;
4) Limit the number of clerks that judges may hire, or, failing that, limit the budget for clerks.

[Bored Lawyer]

(1) -- You could only do this with Senate discipline. Not easy to come by today.
(2) Agreed.
(3) Why, what would that do? If Senior judges retire, there will just be more work for the rest of them.
(4) Ditto. What will reducing the number of clerks do?

[Goat]

Professor Blackman, what is a proportional response for the Merrick Garland-Amy Barrett switcharoo?

It seems to me court packing is the worst thing Democrats could do, aside from all the other things that have been proposed.

[Deontologist]

A simple "deal with it" from the Republicans to the Democrats would suffice.

[WRD]

Wouldn't this response also work from the Democrats to the Republicans in a post-reform scenario?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Looks like another who can;t differentiate between creating new vacancies out of thin air, and turning down one nomination and approving another. Both legal, but there's a world of difference.

[ScottK]

The Senate did not turn down Merrick Garland.

As you know.

[Rev. Arthur L. Kirkland]

"Both legal, but there’s a world of difference."

That is your opinion, it appears, and, I suspect, the opinion of Republicans in general.

Let's see how much practical importance Republican opinions possess next year in the House, Senate, and White House.

[Rev. Arthur L. Kirkland]

" A simple “deal with it” from the Republicans to the Democrats would suffice. "

Win elections or expect Democrats to use their political authority.

If that involves enlargement of the Supreme Court (and of the House, and of the Electoral College, and of the lower federal courts, and of the Senate) . . . deal with it.

[ah....Clem]

The worst thing? The constitution only specifies the Supreme Court. All other federal courts are subject to congress, with the president having veto power.

A democratic congress and president could (at least in theory) dissolve all existing courts and replace them with a new structure entirely populated with new judges.

At this point, it would be completely justified and the GOP would only have themselves to blame. How's that for payback?

[Craig Johnston]

You need to show your work on “it would be completely justified.” If my dog poops on your yard are you “completely justified” to burn the neighborhood down?

[ah....Clem]

It's the McConnell rule:
"Whatever the senate majority can get away with is justified."

He has made the precedent quite clear. Now we have to live with it.

[rsteinmetz]

1) DIdn't there used to be a system where Senators had significant input into appointment of judges in their states?
2( Yes it's too unwieldy and chance plays too much into the results of especially en banc results.
3) Why? it increases then number of Judges available to hear routine cases.
4) Isn't the number already limited? Supreme Court Justices can only have 4, except the Chief who can have 5. How many lower court Judges have more than 2?

[Rev. Arthur L. Kirkland]

" 1) DIdn’t there used to be a system where Senators had significant input into appointment of judges in their states? "

That ship foundered a few years ago.

I expect Democrats to exhibit precisely as much regard for Republicans' opinions with respect to judiciary issues as Republicans have exhibited for Democratic opinions recently.

A series of judges -- on district courts, courts of appeals, and the Supreme Court -- installed with 50-, 51- and 52-vote confirmations probably looked great to Republicans during the Trump administration. You can get young, strident ideologues positioned if you don't care what the minority party thinks.

I expect to see you guys down the road apiece. And I expect to enjoy the ride.

[floridalegal]

There was a respectable confirmation process until Sen. Kennedy sent the entire process down in the sewer with the Bork hearings and his caustic inaccurate speech on the Senat floor. Borking is now a verb. The democrats have lead the process of personal destruction of nominees.

[bernard11]

It was caustic, maybe a bit exaggerated, but not really inaccurate.

Bork was defeated - actually voted down - on the merits, not because of one speech by Kennedy. The right-wing mythology is just that.

[Dilan Esper]

If I were writing the reform law or constitutional amendment, I would have two possibilities:

1. The 18 year term limit everyone has talked about.

2. Treating it like an arbitration panel. The Republicans pick 3 judges. The Democrats pick 3 judges. The six judges pick the other 3 judges.

[EscherEnigma]

I wouldn't bother with a term limit, I would just have the guaranteed two justices per presidential term, and rules for the senate so you can't have another McConnell "well, I just won't allow a vote" moment.

Sure, it'd mean that the court would grow and shrink over time, but a judge retiring or dying would no longer trigger a fight (seriously, anyone who looked at Republicans slavering over RBG's death should be disgusted), and new judges would be regular enough that falling below quorum level (6 justices) would be unlikely.

And obviously, you'd need a line in there about how it doesn't go into effect until the next presidential election.

[Brett Bellmore]

"The six judges pick the other 3 judges."

That just takes any initial imbalance, and turns it into a 6-3 majority.

[Commenter_XY]

Yeah, Sleepy Joe won't try to pack SCOTUS....suuuuure he won't.

Kamala's husband is already telling audiences he is married to the next POTUS. Talk about chutzpah.

[AtlGa41]

That's politics - played hard by the GOP the last 6 years.

[santamonica811]

Oh my God. A spouse of a political candidate trying to project confidence?!? THAT IS OUTRAGEOUS!!!

I do get your point. But it's really odd to me the things that get you exercised and the things that don't seem to bother you.

[Commenter_XY]

Here is the funniest part SM811. You know that chutzpah story? Guess who reported it? Arutz Sheva (Channel 7 Israel). 🙂

[KenveeB]

"Oh my God. A spouse of a political candidate trying to project confidence?!? THAT IS OUTRAGEOUS!!!"

I think part of the problem is that his confidence is that his wife is "the next POTUS." She's not on the ballot for that. Apparently everyone thinks Biden is disposable and Harris is the real next President.

[Deontologist]

The Republicans know that in 6 months or less, the left will have completely forgotten about their fallen comrade, Ruth Ginsburg, and have latched onto why there's a statue of George Washington in some part of the continental United States.

Liberals simply don't have the attention span or awareness of history to sustain any sort of actual assault against the Supreme Court. 15 of the last 19 openings on the Court were filled by Republicans, and it's soon to be 16 of the last 20. Where were the libs before Ginsburg died? Oh, wait, that's right: historical amnesia. For a lib, American history starts only after they graduate high school.

[Deontologist]

This moment in history is a good civics lesson for all the historical amnesia suffering libs in this great country. The left had its chance to transform the Supreme Court into an extension of the UN with a 6-3 liberal-conservative split in 2016. But apparently the barriers to voting in 2016 were too high for the leftists.

In short: the people get the government they deserve. The left did this to itself. It could have secured a generation of liberal Supreme Court decisions but as usual, the lefty's wanted to be couch bums on Election Day instead of visiting the local polling booth.

If one could vote from their phone, then we would never have another Republican President.

Typical leftist laziness: scream at the top of your lungs on Twitter, but can't summon enough energy to walk to the polling booth.

[Rev. Arthur L. Kirkland]

Open wider, Deontologist.

You likely are about to observe what 51 Democratic votes in the Senate (without a filibuster threat), a Democratic House majority, and a Democratic president can do. The preferences of the American liberal-libertarian mainstream majority will be enacted and enforced, against the wishes and efforts of right-wingers.

You aren't going to like it, but there will be nothing can do about it. You get to whimper all you want, but you will comply.

[Deontologist]

The American people seem to like a divided government. The last time the Dems had a trifecta (House, Senate, and White House) and tried to do something to "help" the American people (ACA), they got kicked out for... 10 years, and counting.

The D's are well on their way to be capturing the trifecta again in 2020 but history shows that every time the D's actually get the trifecta, the American people end up rejecting the Dems for ~10 years or more.

In the last 25 years, the Dems have only held the trifecta for 4 years. The American people are too intelligent to give free reign to Dems, and instead recognize the benefits of divided government.

[Rev. Arthur L. Kirkland]

How many times do you expect Republicans to win the presidency while losing the popular vote?

How many times to you expect Republicans to win a national election against the demographic wave that favors Democrats?

How competitive do you expect Republicans to be in a 106-member senate?

How many people are going to continue to dabble in voter suppression after voter suppression has been criminalized?

How much longer do you expect the filibuster to last?

Republicans, as their ideas have become less popular and less reasonable, have relied on (1) voter suppression, (2) gerrymandering, and (3) our system's structural amplification of rural votes and voices to remain electorally relevant.

Diminishing that structural magnification of yahoo voices (filibuster, Senate, Electoral College) is likely to be a strong Democratic priority.

Watch Pennsylvania for a lesson on the future of Republican reliance on gerrymandering.

Voting rights -- including a new voting rights act, with criminalization of voter suppression -- is positioned to be another strong Democratic push in 2021.

As our electorate continues to become less hospitable to Republicans -- less rural, less religious, less White, less intolerance, less backward -- it will become increasingly more difficult to maintain a viable national electoral coalition for bigotry, backwardness, and fundamentalist superstition in modern, improving America.

I am not much worried about a backlash against Democrats who shape progress based on reason, science, inclusiveness, modernity, reason, and majority rule.

[perlchpr]

Yes yes, darling, I'm sure that Santa will bring you that Shetland pegasus for Christmas so you can fly to kindergarten the rest of the year.

[Goat]

"The left had its chance to transform the Supreme Court into an extension of the UN with a 6-3 liberal-conservative split in 2016."

Help me out with the math here? are you supposing Kennedy would have retired during an HRC administration? are you also supposing the Republican-controlled senate would have confirmed anyone nominated by HRC?

Also, suppose Biden wins in a landslide, as expected, and Democrats end up with 52 or 53 senators, as expected. Does your logic not still apply? is it not perfectly reasonable for democrats to pack the court?

[Deontologist]

You're right, I meant 5-4 liberal-conservative split.

I doubt the Republicans, as intransigent as they can be, would have blocked Hillary from making one Supreme Court nomination for 4 years. They didn't do that to the Black guy in office, for example.

[Goat]

"They didn’t do that to the Black guy in office, for example."

Ehhhhh. They did it the first and only opportunity they had, at least for a SCOTUS nomination (recall that Democrats controlled the senate for the Kagan and Sotomayor nominations).

[Deontologist]

We'll never know what could have happened. But it's factual that the liberals could have easily secured a 5-4 liberal majority. All it would have took would have been a) voting Hillary into office and b) voting a few Dem Senators into office along with her. A blue wave, so to speak.

But as is common, the Dems are largely ignorant and/or unmotivated by Supreme Court issues. Except when it comes to a gay rights case.

[Goat]

So then you're fine with the Democrats packing the court come January?

[Deontologist]

I can't imagine being more out of touch with reality than focusing on court packing come January, instead of, say, issues closer and dearer to the millions of unemployed Americans and the millions of Americans who've lost someone in their families and the millions of Americans who are just barely getting by.

[Rev. Arthur L. Kirkland]

I doubt Court enlargement would be the only, or even most prominent, endeavor among Democrats next year. A pandemic management program; an economic relief plan; universal health care; and voting rights legislation are likely to be just as important. Ending the filibuster and admitting states also seem destined to be addressed.

[Deontologist]

Presidents typically get 1 or maybe 2 major bills through Congress in their first term. Not half a dozen. Obama: stimulus, ACA. Trump: tax cuts.

[bernard11]

Yet Trump and McConnell were way more focused on the Barrett nomination than those other things.

In fact, they give no evidence of giving a shit about "the millions of unemployed Americans and the millions of Americans who’ve lost someone in their families and the millions of Americans who are just barely getting by."

[Deontologist]

Is that the perception from the left or is that the perception from who matters, which are the independent voters?

Trump, despite all his negative polling, still has net positive numbers when it comes to who voters trust to handle the economy.

[bernard11]

I don't know what the perception is.

I do know what the facts are. They don't give a shit.

[David Cary Hart]

I wish that Biden had simply said that he would endorse expanding the Court if the current justices made it necessary.

Dogmatists like Barrett accept, as incontrovertible truth, the teachings of their religion regardless of evidence to the contrary. We already have two of those in Alito and Thomas. We could do without a third.

No one asked Barrett how she viewed Scalia's opinion in Employment Division v. Smith. Nor the ruling in Bostock.

My immediate distress is over Fulton v. Philadelphia. In that case Catholic Charities is defying local law by not placing foster children with gay couples. Were it a private placement service I would not object. I might write about the noxious policy but it would end there. However, Catholic Charities is doing the work of the state with taxpayer funds. Oral argument is November 4. Court packing is irrelevant.

More relevant however is Masterpiece II. That involves the idiotic florist in Washington State who thinks that religion gives her a pass to discriminate.

Secular people dominate virtually every other intellectual pursuit of importance. Republicans have a penchant for going the other way with the highest court in the land because they are pandering to the religious right.

Assuming that Barrett is confirmed at least one-third of the justices will be, ... dogmatists. In his dissent in US v. Windsor Alito voiced concern for being regarded as a "superstitious fool." Aside from the fact that that should not be the basis for a ruling, consider the priorities. Thomas echoed that moronic argument regarding Obergefell just a few days ago.

I don't see any way NOT to expand the Court unless we want public policy to mirror religious doctrine.

[ReaderY]

How is saying that the states get to decide an issue rather than the Sipreme Court an imposition of religion.?

[Josh R]

If Fulton comes out the way David fears, states will be denied the ability to decide the issue.

[ReaderY]

And more fundamentally, religious statements are statements about a Supreme Being or Beings. Statements abouf what human behavior should or should not be legal are never statements of religion.

[AtlGa41]

Good point ...
Except where State Supreme Courts construe STATE voting laws.
Then it's a federal question for the soon-to-be Big 5.

[arch1]

"Secular people dominate virtually every other intellectual pursuit of importance."

Assuming that by "other" you mean "other than the U.S. Courts," I think you missed something David. In 21st century U.S. it is still virtually impossible to be elected to high public office without professing allegiance to one or another mystic belief system unfounded in reason and evidence. And not just *any* such belief system, but one incorporating certain required dogmas.

Omit this, and one's candidacy is almost certainly doomed. Do this, and one gains not only the possibility of a meaningful candidacy, but the right to be referred to as "a person of deep faith" rather than its denotative-but-not-connotative synonym, "a deeply superstitious person."

[Dilan Esper]

I wish that Biden had simply said that he would endorse expanding the Court if the current justices made it necessary.

Court packing (let's call it what it is) would be terrible for the federal judiciary. Biden, as a former Senate Judiciary Committee Chairman, actually knows this. And that's why he is not endorsing it.

[Rev. Arthur L. Kirkland]

Enabling a minority of ignorant bigots and religious kooks to control the levers of American political power would be terrible, too. I do not expect better Americans to accept that undeserved magnification of minority influence much longer.

[santamonica811]

Dilan,
Can you explain your premise...that adding Justices would be terrible for the federal judiciary? I mean, you might be right. But isn't it possible that you're actually wrong on this? That there were be a net benefit?

I have listened and read arguments from both sides, and I see lots of very very smart people arguing both sides, in good faith. Which makes me believe that it's not as cut-and-dried as you suppose. Can you help me understand why you are (apparently) 100% confident that this would be a very bad thing?

[ReaderY]

The Constitution textually protects the free exercise of religion.

If the state had a longstanding contract with a kosher caterer to serve kosher hospital meals, and then passed a law requiring all caterers to serve pork, you don’t think the caterer wouldn’t have a case?

My personal view is that a state can categorically exclude religious providers from these kinds of contracts, to avoid having to deal with difficult accommodation issues. It can include them and accommodate. But it can’t enter into a contract, and then impose a rule and demand performance on it. My rationale is based on establishment, not free exercise. Funding religious groups whose doctrines it finds agreeable but not those whose doctrines it doesn’t looks too much like establishment to me, and I would see that as a worse problem than a problem of discriminating between religious and non-religious groups, which I think government rarely has to do, but usually can do, in the context of funding decisions. (I agree with the old “play in the joints” doctrine.)

Given this, I would tend to agree that so long as all religious groups are treated equally - an important condition - then free exercise does not include an entitlement to exercise at government expense. So in my view the choices should be either exclude, or include but accommodate.

As to it being inappropriate to decide these cases, there is no religious test for public office. If religious people had to recuse from religious accommodation cases, why wouldn’t black people have to recuse from Civil Rights cases? An opponent of civil rights could equally well argue that being a member of the protected group biases them towards too expansive a view of the protections.

[Josh R]

If the state had a longstanding contract with a kosher caterer to serve kosher hospital meals, and then passed a law requiring all caterers to serve pork, you don’t think the caterer wouldn’t have a case?

If the requirement to serve pork is a neutral and generally-applicable law, why would the kosher caterer win under Employment Division v. Smith?

My personal view is that a state can categorically exclude religious providers from these kinds of contracts, to avoid having to deal with difficult accommodation issues.

How is a facial, categorical exclusion neutral under Lukumi?

[ReaderY]

This was the holding of Locke v. Davey, which is still a valid precedent, although it has been cast into consideranle doubt by Trinity Lutheran.

Under the “play in the joints doctrine,” the state has some discretion as to whether to subsidize or contract with religious organizations or not.

Locke v. Davey was decided after Lukumi and is easily consistent with it. There is a big difference between banning a religious activity and subsidizing it.

As to Smith, I disagree with Smith. But the cases are easily distinguishable. Smith was a free exercise case involving a state prohibition. My argument is an establishment clause argument based on a state subsidy. A second distinction is that thhis case invovles a relgious organization as such, not just an individual with religious beliefs. In my view, subsidizing religious organizations with agreeable doctrines but not disagreeable ones poses establishment clause problems, distinct from free exercise issues and hence distinct from Smith. Prohibiting individuals over a similar issue would pose only free exercise clause problems.

[Commenter_XY]

ReaderY (and Josh R)...what a great exchange. Wow.

But I have a question. When does 'play in the joints' become a 'separated joint, or a busted bone'? When does it go past 'play' and become a problem?

[Josh R]

As the Court said in Trinity

Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do.

I'm pretty certain your categorical denial of a contract to a kosher caterer is because of who they are, not what they do.

But the cases are easily distinguishable. Smith was a free exercise case involving a state prohibition. My argument is an establishment clause argument based on a state subsidy

I'm not following how requiring all contracted caterer's to provide pork implicates the Establishment Clause.

[EscherEnigma]

An opponent of civil rights could equally well argue that being a member of the protected group biases them towards too expansive a view of the protections.

Well, yeah. That's why Republicans argued that Walker's decision on Prop 8 should have been thrown out, and why Trump attacked a judge for being Mexican-American.

But we already knew Republicans were opponents of civil rights.

[Commenter_XY]

ReaderY...Isn't Fulton a case about a catholic adoption agency, though? I am not really seeing how Philadelphia 'subsidizes' the catholic adoption agency. What is the subsidy? The city contracted for a service; adoption placement. The adoption agency places children with parents that they screen. That is what the city contracts for.

To me, the catholic adoption agency cannot be discriminated against on the basis of their religious viewpoint when it comes to contract renewal. That is what happened here.

I suppose you could argue that in between renewal, the contract terms changed and the catholic agency could not fulfill the new terms and therefore the contract was not renewed.

[Josh R]

They aren't being discriminated based on their viewpoint. They are being discriminated on the basis of their conduct. If I am wrong about this, then all anti-discrimination law is viewpoint discriminatory and thus unconstitutional.

[Commenter_XY]

Their conduct is placing children with parents, isn't it? That was the contract.

[Josh R]

Yes, the specific conduct that Catholic Social Services is being sanctioned for is their refusal to place children with gay parents.

[Commenter_XY]

Ok, but that refusal is based on religious viewpoint; it has nothing to do with the act of placing a child with a set of parents they screened for placement - which they did for a century.

[Josh R]

Of course Catholic Social Services' refusal is based on religious viewpoint. However, so long as any agency which refused to place children with gay parents for any reason is treated the same as Catholic Social Services, there is no viewpoint discrimination.

[QuantumBoxCat]

I wish Biden would work on excising the term "Court packing" from the political rhetoric. When asked about "Court packing" (a pejorative political term that lacks objective meaning) Biden should respond discussing judicial staffing and judicial reform. He needs to stop letting reporters get away with asking him about "court packing."

Someone on his team should start doing their historical research and highlight all of the times that Congress altered the federal judiciary and the size of the Supreme Court. As I see it, since justices were traditionally added when a new circuit was created, we have been short two justices for quite some time given that we have 11 numbered federal circuits.

[DaivdBehar]

1) Judicial review is prohibited by Article I Section 1, giving "all" lawmaking power to the Congress. If the Supreme Court will legislate from the bench, it should have the size of a legislature, like 500. That would enhance it with the wisdom of the crowd;
2) the number should be even to allow precedent to prevail, as applied by lower court decisions;
3) it should be moved from the rent seeking capital of the country, Washington, DC. Justices will always acquire the local culture. The most American culture is Midwest culture. Move it to the middle of the country, like to Wichita, KS.

All this can be achieved with a Judiciary Act.

[ReaderY]

Everything depends on the composition of the commission.

If the commission is truly bipartisan, it will be unlikely to unequivocally recommend court packing.

Tbe commission idea might be a way for Biden to save face with the more zealous among his constitutuents.

Often, promising to study an issue is a classic bureaucratic way to avoid taking action on it. And Biden is a mastery of bureaucratic procedure.

[Rev. Arthur L. Kirkland]

Everything depends on control of the Senate.

[Deontologist]

And are you sure that even with a 52 or 53 seat majority, the Democrats can whip everyone into line on every liberal idea? Don't forget that several got into the Senate on the blue wave of 2018. Not sure if they'd want to vote yes on every liberal idea just for the sake of being liberal. I'm sure some of them wish to remain in the Senate for more than 1 term, and that likely requires moderating their preferences.

[Rev. Arthur L. Kirkland]

Republicans seem to have kept their senators in line. Why would Democrats miss a chance to improve America?

I'd concentrate on winning elections and the battle of ideas rather than on persuading elected Democrats to vote for conservative preferences.

May the better ideas win.

(Of course, that's ease for me to say -- my ideas are better and have been winning for more than a half-century.)

[Longtobefree]

Bi-partisan in this case means half socialists and half communists and half Biden relatives.
All at a huge federal salary with full pensions after 2 months of 'service'.

[SKofNJ]

Absolutely brilliant. Let's get together a Commission whose goal it will be to discover why our court system is "out of wack." Next, let's have a Commission to discover why government "doesn't work," followed by a Commission to uncover the reason why "life sucks."

[Just Eric]

Biden believes the court is "getting out of whack." Part of the reason for Clinton's loss in 2016 is that the so-called creative class sees judicial redefinition of marriage and recognition of transgenderism within sex discrimination laws as normal and undoubtedly righteous. Obergefell may end up as best example of one-way ratchet as the four dissenters are viewed in the bubble as so clearly on the wrong side of history, and motivated by nothing but hate. That's whacked, alright.

[Sebastian Cremmington]

I heard Amy Coney Barrett got “lady wood” when George W Bush gave a speech promoting a constitutional amendment outlawing gay marriage in 2004. That only happened one time before when she got a full on “lady boner” when Bush did shock and awe and slaughtered Iraqi babies in 2003.

[Just Eric]

Yeah, none of my opponent operate in good faith. They hate babies. But love the taste.

[bratschewurst]

No. The first rule of judicial reform is that the Right believes that it, and only it, should be able to appoint judges and justices. And that the Founders intended it to be so.

The only rule that matters is the Constitution, which provides that a Democratic Congress and President have the power - under the Constitution - to alter the judicial system in ways that might make the courts more representative of how Democrats think laws ought to be interpreted. Just like Republican Congresses and Presidents have been doing through their appointments - and, equally important, through their (Constitutionally permitted) manipulation of the appointment process.

No norms anymore. That ship has sunk.

[Bob from Ohio]

The power of the federal courts needs to be reduced.

If the stakes were lower, parties and their supporters would care less.

[Commenter_XY]

Yes, that is the essential truth = If the stakes were lower, parties and their supporters would care less.

[Don Nico]

Announcing a commission is a clear message that Biden intends to pack the Court. The is no need for a Commission except to provide cover against criticism

"The first rule of judicial reform is that the Right believes that it, and only it, should be able to appoint judges and justices. And that the Founders intended it to be so."
A nonsense strawman to justify your position.

[bernard11]

Announcing a commission is a clear message that Biden intends to pack the Court. The is no need for a Commission except to provide cover against criticism

I doubt it. It seems like more of a delaying tactic to me. It gives him an answer to the question, for one thing, and buys time to see what kind of decisions come out.

[Dan Schiavetta]

Biden made some wise and correct comments.

Maybe when he hits puberty Josh will recognize that.