Court Packing

Biden's Judicial Reform Commission and the Future of Court-Packing

What we know of the planned commission's membership makes it unlikely it will recommend court-packing. But that doesn't mean the issue will simply go away.

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The Supreme Court.

 

When the issue of court-packing became a major focus of controversy during the 2020 campaign, Joe Biden tried to side-step it by proposing a bipartisan commission on judicial reform. At the time, I suggested the commission idea was an indication that Biden would prefer not to move forward with court-packing. By contrast, co-blogger Josh Blackman contended that the plan was to create a commission stacked with court-packing supporters, which would then recommend packing and give a boost to the cause.

It's not yet entirely clear who was right. But early indications suggest my prediction was closer to the truth. As Josh notes, a recent Politico article reports that the person organizing the commission and leading the effort to select its members is Biden adviser and former Obama administration White House counsel Bob Bauer, who will also co-chair the commission.

Does Bauer have a position on court-packing? It so happens he does. Back in July 2018, he wrote an article in The Atlantic entitled "Liberals Should Not Pack the Courts," in which he argued against proposals advanced by other liberals to pack either the Supreme Court or lower courts. He opposed such plans on both principled and pragmatic grounds, fearing that court-packing would damage the institution of judicial review, and also potentially damage the Democratic Party politically.

With Bauer heading up the selection the process, it is highly unlikely that the Commission will be "packed with court-packers." To the contrary, it is more likely to instead have a working majority opposed to the idea. At the very least, the Commission will almost certainly not come up with a broad consensus in favor of court-packing, or any similar plan,  such as "rotation" and "court balancing."

Politico reports that Harvard Law Prof. Jack Goldsmith will be another commission member. Goldsmith is a prominent conservative legal scholar and former Bush administration official (and coauthor, with Bauer, of an important new book on reforming executive power). While he has been highly critical of Trump on many matters, he seems generally happy with the latter's Supreme Court nominees, and is almost certainly opposed to court-packing in any form.

There will be at least one member potentially sympathetic to court-packing: Caroline Frederickson, former president of the American Constitution Society (liberal counterpart to the Federalist Society). The other co-chair of the Commission will be Yale Law School Prof. Cristina Rodriguez, a well-known immigration law and constitutional law scholar. Although she happens to be my law school classmate and former high school debate opponent, I honestly don't know where she stands in the court-packing debate. But even if she is supportive of the idea, I still think it's unlikely the Commission (which is expected to have 9 to 15 members in all) will have a clear majority in favor of packing.

If the commission comes to a consensus on any proposal, it is likely to be something that enjoys broad support in the legal community, cutting across ideological lines. One such idea could be term limits for Supreme Court justices, a proposal backed by numerous legal scholars and other experts on both right and left (myself included). In his Atlantic article, Bauer wrote that term limits is an idea worth discussing. On the other hand, President Biden has expressed opposition.

I expect that the commission will ultimately recommend some sort of reforms. But court-packing is unlikely to be one of them, as conservatives and libertarians are almost uniformly opposed, while liberals are internally divided on the matter (though left-wing support for court-packing has clearly increased as a result of the high-handed behavior of Republicans in recent confirmation battles).

Regardless of what the commission does, it is highly unlikely that court-packing will be enacted any time soon. In divided 50-50 Senate, Democrats will need every single D vote to pass it (with Vice President Kamala Harris breaking the tie). But key swing voters Joe Manchin and Kyrsten Sinema have already expressed their opposition. Other Democratic moderates might be opposed, as well. I am skeptical that court-packing can even pass the House of Representatives, where the Democrats have only a narrow majority, also dependent on moderate votes.

On top of that, passing court-packing with a narrow Senate majority would probably require ending the filibuster. Manchin and some other moderates are opposed to that too.

But it would be wrong to think that the court-packing issue will simply go away. Over the last few years, the once-unthinkable proposal has clearly become part of mainstream political discourse on the political left. Thanks in part to the bad-faith behavior of Republicans (where the party first claimed it was wrong to vote on a Supreme Court nominee in an election year in 2016, and then took the completely opposite stance when it became convenient in 2020) the "Overton Window" on this issue has moved. Like Trumpian nativism on the right and Medicare for All on the left, court-packing is an idea that went from being out-of-the-mainstream to very much within it. It will not be easy to stuff the genie back into the bottle.

Some combination of larger Democratic congressional majorities and Supreme Court decisions that greatly anger the left (and especially the general public) could rekindle the issue over the next few years, and make court-packing more politically viable than it is now.

Whether the persistence of the issue is good or bad depends on your point of view. For liberals who believe that court-packing is a justifiable response to previous GOP skullduggery, in order to reclaim one or more "stolen" Supreme Court seats, the difficulty of completely burying the idea is good news. My own view is that Court-packing would be much worse than other recent judicial-nomination shenanigans, and therefore it must be forestalled, even though the GOP deserves a substantial portion of the blame for bringing things to the point where the idea has become mainstream (the Democrats aren't innocent lambs either).

In sum, Biden's planned commission is unlikely to give a boost to court-packing, which is in any case highly unlikely to be enacted in the current Congress. But the idea remains a part of mainstream politics, and therefore could well become more viable at some other time in the next few years.

NEXT: Classes #4: "When is Conduct Speech?" and "Capture Rule and Acquisition by Creation"

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  1. In a dark and sinister way, I hope Biden does “pack” the court — because in 2025 we’ll then have a five hundred member SCOTUS and that will return us to a Pre-John Marshall era.

    It will also legitimize populism, which will silence much of Ilya’s agenda.

    1. There’s no reason we can’t all be on the Supreme Court. Direct Democracy!

    2. Yeah, I bet you’d like to return to a Pre-John Marshall era for sure…

      1. Every time I hear Elvis Costello ‘Oliver’s Army,’ I hear in my head “Oliver Ellsworth’s here today, Oliver Ellsworth’s on his way…”

    3. I hope he packs the court because I want a violent civil war. Anything that accelerates that process is a good thing.

    4. I sat on the Pnyx in Athens, scratched in the dirt, and pulled up a few potshards (aka ballots) and tossed them in my pocket. They grabbed them in Customs, saying I was illegally exporting antiquities, and let me pass without any further ado. So yes, direct Democracy results in litter.

  2. “high-handed behavior of Republicans in recent confirmation battles”

    Bullshit. Not letting extremely improbable idealogically motivated allegations derail a supreme Court nominee, or refuse to vote on a nominee that doesn’t have the votes to be confirmed, or confirming a nominee in about the average time when you have the votes, rather than to wait 5 months for a confirmation, are all exactly the same thing Democrats would do in the same circumstances, in other words exactly conforming to the political norms.

    1. In a narrow sense, TFA is correct; the Dems did react to the Republicans’ high-handedness. But that the kind of correct nonsense that makes people hate lawyers and politicians and the media.

    2. When you guess the other side would have done what you actually did to justify what you actually did…

      1. Believe all women. But only if they are accusing Republicans or people nominated by Republicans. We don’t have to imagine how the left would have treated Kavanaugh or Barrett — we saw it first-hand.

    3. I was wondering how the tedious Somin would blame Trump for Democrats’ terrible plans and he managed it.

  3. Yes. They will add seats to the Supreme Court. And, law professors will cheer since adding 5 more leftist justices will “balance” SCOTUS in such a way to add more equity to rulings from the Court.

    Then, eventually as always happens, the GOP will have the Presidency, Senate, and House again, and if they even mention adding an additional 5 additional Justices to SCOTUS we can come to REASON to read how this is an attack on the justice system and overturns all norms and precedents.

    1. They certainly will not add seats under the current political make up and given that will likely change in a couple years this is really pretty paranoid on your part.

      1. Why paranoid. Cindy was only commenting that court packing is a very slippery slope.

  4. My own view is that Court-packing would be much worse than other recent judicial-nomination shenanigans,

    After a few years’ residence in Massachusetts, it dawned on me that local news organizations practiced a neat little 4-part taxonomy of descriptors for political misbehavior:

    1. Hanky-panky: outright illegal behavior. Stuffing the ballot box, for example.

    2. Shenanigans: not illegal, but maybe ought to be. Possibly correctly used in the quote above, but more on that below.

    3. Hi-jinks: the laugh-a-minute side of almost-harmless political misbehavior. Your young, ambitious political aide patrols the early morning halls at the convention hotel, picking off newly shined shoes of opponents, returned for pickup outside their doors. In the ensuing confusion, you win a key early-morning vote in the rules committee.

    4. Antics: politically abusive behavior so original every jaw drops open, and no one thinks to complain.

    The legislative session ends at midnight. All term long, almost nothing has been done, or at least not done in public sight.

    At 11:56 p.m. the Senate President appears. He drops two piles of paper on the lectern.

    Gesturing toward the smaller pile, on his left, he announces, “These are the bills that are going to pass.”

    Gesturing toward the other pile, “These are the bills that are not going to pass.”

    “All in favor of the bills that are going to pass, say, ‘Aye.'”

    “Aye!”

    “All opposed to the bills that are not going to pass, say, ‘Nay.'”

    “Nay!”

    “Motion to adjourn?”

    “Seconded!”

    “All in favor!”

    Gavel. Dash for the exits.

    Now about shenanigans, and Republican Senate abuse of Supreme Court nominations. I think we need a 5th category to add to the taxonomy. This one ought to be about gratuitous norm-shattering—amounting to cheating—and actually more damaging than most Hanky-panky. I don’t think, “shenanigans,” really captures that. Any suggestions?

    1. Lathropisms.

    2. I enjoyed that!

      I’d go with monkeyshines.

      1. Or skullduggery. That’s underused.

    3. How about one for gratuitous claims of “norms” that never actually existed?

    4. I believe Mark Tushnet called it “Constitutional hardball.”

  5. After more than 4 years of conservative court packing it is really amazing how it turns out that conservatives are suddenly so against court packing.

    One in 4 federal judges have been appointed by Trump.

    It must have truly astounded him when he found out that not one who reviewed an election fraud case would rule in his favor.

    1. After more than 4 years of conservative court packing . . . One in 4 federal judges have been appointed by Trump.

      You and Chuckie Schumer just might be justified in spreading that meme if you could only show, prior to Trump (heck, prior to last year) a common understanding that “court packing” includes the practice of appointing judges to vacant, already-existing seats.

      Otherwise, nah.

      1. Ah, give him a break, man! His head is out there, somewhere.

      2. Do you care to speak to the practice of blocking nearly all court nominations against the day that you get a president on “your side” who thereby get to fill far more vacancies than normal?

        Yes Trump filled vacancies with the judges of McConnell’s ideology.

        And he got to fill two SCOTUS seats he normally would not have absent McConell’s hypocritical Senate manipulations.

        1. Setting aside the pervasive factual baloney in your storyline, given that none of those situations fit the definition of “court packing” either, I’m not sure how you thought leaping to your latest lilypads would improve your situation.

          Unless you’re just abandoning ship and pushing all in on a distraction.

    2. While Trump appointed somewhat more judges than the last 1-term President, 226 v.. George H. W. Bush’s 187, he appointed considerably fewer than any recent 2-term President.

      http://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/%3famp=1

      Would you be prepared to say that all 2-term Presidents in recent history, who all appointed a considerably larger proportion of federal judges than Trump did, were also court-packing?

      If so, why does the term have any negative connotations if it’s something all or virtually all recent Presidents, Democrat and Republican alike, have done?

    3. OM,
      Please learn and use the actual taxonomy rather than your partisan motivated one.
      Court packing = expanding court membership with judges of your favored Ideology. This has NOT been done since FDR tried and failed.
      Court stacking = filling vacancies with with judges of your favored Ideology. This has been done by every POTUS in modern times.

      1. The majority of the media and the public sees what happened as court “packing.” So that’s the terminology used here and from context everyone with any probity at all knows what is meant.

        Of course presidents get to pick their own judges. However one president gets all their nominations blocked, giving the subsequent president many more vacancies to fill. Most objective people will see that as unfair except when they are so partisan they don’t care as long as “their side” wins.

        1. I looked it up. Obama was getting judges confirmed well into 2016. But I suppose people would see that as unfair if it ever happened.

        2. Majority of the media that votes, roughly, 90% for Democrats see something partisan is nothing shocking. At all.

          What morons in the media think are of little interest to anybody.

    4. So, “filling vacancies by the same Constitutional standard used for a long, long time” is now “packing”?

    5. Yeah never mind a large amount of the cases were dismissed due to “lack of standing” which is judgespeak for: “I don’t want to deal with this. Take it to a higher court” like what happened during Bush v. Gore.

  6. God, Ilya you are naive.

    A potato who said it is wrong to govern by EO has already signed, what, over 30 of them in his first week.

    What makes you think he would keep his word on something so trivial as the SC?

    1. Cancelling existing EOs is not really governing by EO, but go off.

      1. https://abcnews.go.com/Politics/bidens-executive-orders-notable-actions/story?id=75500311

        Only two, out of “more than three dozen executive actions”, revoked previous EOs. I hope you were actually being sarcastic this time.

        1. Nice link, did you read it?

          Your only 2 appears to be completely wrong. I count at least 5 that *use the word revoke* (DACA, Muslim ban, no funds to sanctuary jurisdictions, termination of border emergency, “Revokes six “harmful policies and directives”)

          And that doesn’t count those that effectively revoke Trump executive directed policies and return to the Obama-era status quo:
          Rejoining the World Health Organization
          Revokes the Keystone XL Pipeline permit
          Paris Climate Agreement
          Count all residents in the Census
          Transgender ban
          Closing private prisons

          Do you think continuing existing EOs is governing by EO:
          Pausing Federal Student Loan Payments
          Mortgage moratorium.

          Most of the rest is COVID stuff. Unless you think EOs like “Directs several agencies to review and assess the inventory of pandemic response supplies” is governance.

          IOW, you are lying, maybe also to yourself.

          1. S0,

            I am sorry to see that you have fallen prey to the disease of equating being wrong with lying. We are not going to get back to effective political discourse that way.

            As a former physicist you also know that restoration of the state of a system to its previous takes action. Let’s not transform bit of sophistry on everyone’s part to accusations of improper behavior.

            1. His comment had facts baldly inconsistent with the simple text of what he linked.
              It was at best willfully blind. Which is why included lying to himself in the analysis.

              The discussion is not about whether work is being done, it’s about what constitutes governing.

              Now, Biden may governing via EOs. It’s gotta be tempting – that’s why Trump fell for that trap. But Biden seems smarter than that, hoping to get some stuff through the veto gates and into legislation, which cannot be reversed with but a little work by an opposing executive.

              1. [Since you’re clearly content to pick at the trees to avoid facing the forest, I’ll repost the first of my two links that sent this morning’s reply into moderation limbo:]

                Right here is a list compiled by alt-right CNN, showing the 30(!) XOs Biden signed in his first 3 days in office, and tabulating which of those 30 are Trump reversals and which are new, affirmative orders.

                20 are new. That’s still order-of-magnitude territory above any other president’s first-week tally.

                1. One more time: Here.

                2. Yeah, I already addressed how the metric of ‘just look at the number’ is a bad metric. ‘Directs several agencies to review…’ is not governing.

                  1. Easy to forget it’s different because you like Biden.

      2. But of course, when Trump canceled an Obama EO, it was “arbitrary and capricious.” You pieces of shit are the biggest fucking leftist liars.

      3. Biden called it being a “dictator”. I know, it’s wrong to take what a senile old man says seriously, but he is the President and all.

  7. Yeah, the moment I saw Blackman’s post I chuckled. Because when you really want to get something done what you do is create a commission/committee to study the matter! lol

    1. Why are you laughing? That is what Biden did to kick the can down the road, maybe to give everyone time to cool off.

  8. If Democrats pack the court, Somin makes clear the Republicans will be to blame.

    In October, Biden claimed only a “dictator” would govern by executive order. Now, Biden has signed a record amount of executive orders in his first week as President. Naturally, this is greeted with silence from the libertarian champions here.

    1. If a bear farts in the wood, Republicans are to blame. Somin has chosen sides, that much is clear.

    2. Obviously when Biden said that only a dictator would govern by executive order, what he meant was that he would issue zero executive orders in his eight years in office.

      1. It was a stupid thing to say, so he deserves to have it thrown in his face.

        EO’s are a large part of how Presidents run the executive branch. They can range from perfectly legal to wildly criminal, depending on what they order.

        But, live by stupid campaign hyperbole, die by stupid campaign hyperbole.

        1. The Mexicans are going to pay for all Biden’s EO’s.

        2. No, it wasn’t stupid. You just don’t know what govern means.

      2. I was unaware he meant that doing more than 30 EO’s in a week (when your party, mind you, has majorities in both houses to boot) was not really “using EO’s is being a dictator”.

  9. Given the amount of flip flopping we’ve seen around the issue of court appointments between Ginsburg’s death and Barrett’s appointment I’m not sure how confident we should be that Bob Bauer’s current view is the same as it was in 2018.

  10. I agree that with both Biden and several moderate Democratic Senators opposed to expanding the size of the Supreme Court, it’s very unlikely to happen.

    I think the only way term limits could be constitutionally implemented would be through a completely voluntary program like senior status. Congress could, for example, offer a larger retirement package to judges who take senior status immediately following their 18th year in office than it gives judges who retire later. I’m not sure this would be in keeping with the spirit of the Constitutional design, which I think wanted to insulate judges from being motivated by money. But it might well be compatible with the letter.

    The commission might, however, recommend increasing the size of the lower federal courts, which have’t had the number of judges increased in decades despite significant growth in the size of the country and the amount of litigation. It might also recommend splitting the 9th Circuit, the largest in the country, into two and creating a new 12th Circuit.

    1. I suspect that the judges and justices each side most wants to get rid of would be the ones least likely to accept the package and retire after 18 years, so I’m not sure how effective it would be. Congress could try offering current standard senior status after 18 years regardless of age.

      However, I suspect many judges would need more incentive to retire than that. They are already giving up lucrative private practice income. A retirement package big enough to be a serious incentive to retire early – it might need to be substantially more than regular salary – might well generate backlash as too generous a benefit and a waste of taxpayer money.

  11. Judicial review violates Article I Section 1, as do executive regulations. If we are going to make law, then the Supreme Court should have the size of a legislature, and the diversity of one.

    The size of the Supreme Court should be 500 Justices, and people from a jury pool should rotate through it for 2 year terms. Keep the pay the same, and end the whining about how low it is. The Court would benefit from the Wisdom of the Crowd, and be less awful, less stupid. Right now a bunch of know nothing, Ivy indoctrinated, book worms are setting national policy on complicated technical subjects, and they are awful.

    This quality improvement goal may be achieved with a Judiciary Act.

  12. Court-packing is so unlikely to happen that it’s strange the idea gets so much attention on this site.

    1. Actually, this is a law blog – – – –

  13. Mid-2018 is ancient history in terms of how fast things are moving now, so I wouldn’t put much weight on what he said then.

    Likely Court packing is on hold until the left lose some case they care about. With the Senate as close as it is they’ll give the Court a chance to ‘switch in time’ and save 9. But their first big loss there would serve as an excuse.

    Disagree that Biden opposes Court packing. He passed up more than one chance to publicly rule it out before the election.

    1. Disagree that Biden opposes Court packing. He passed up more than one chance to publicly rule it out before the election.

      News flash:

      Politician is evasive on controversial issue.

      1. Saying that the voters didn’t deserve to know his position on court packing was evasive, but politicians aren’t usually evasive when their positions are popular. So we can reasonably deduce that Biden favored Court packing, because it was unpopular.

        1. but politicians aren’t usually evasive when their positions are popular. So we can reasonably deduce that Biden favored Court packing, because it was unpopular.

          Do you know what controversial means?

          1. Trivially, it means that someone, somewhere, disagrees. NOT that public opinion is approximately balanced. Court packing was and is unpopular, which is why he was evasive about favoring it. If he had opposed it, saying so would have been an easy call.

            When politicians attempt to hide their position on a topic where public opinion is strongly on one side, it is a reliable sign their position is the unpopular one.

    2. Yep. If the SCOTUS rules that “assault weapons” bans are unconstitutional or that states have to issue carry permits on a “shall issue” basis, or if SCOTUS upholds the right of a baker to not bake a cake for a “couple” whose plan for that night involves shooting off in the other’s rear end, they will be calling to pack the court.

  14. “Thanks in part to the bad-faith behavior of Republicans (where the party first claimed it was wrong to vote on a Supreme Court nominee in an election year in 2016, and then took the completely opposite stance when it became convenient in 2020) ”

    Very selective misrepresentation of the facts & very selective history of SC confirmations in election years – ignoring the history of which party controls the senate and which party has the presidency.

    ” Advice and Consent ” of the Senate.

    1. Yet another ‘tell’ that Ilya has joined the left. As if we needed any more.

      1. Well, at least the Right won’t have to defend itself from what an idiot thinks about things.

        I guess Ilya is really, really anxious to bomb and kill dark- skinned folks. Like virtually every Never-Trumper Republican.

  15. So, what’s with the word “reform” in the “Judicial Reform Commission”? What exactly is it they’re trying to “reform”? Color me skeptical from the start.

    1. I find it best to remember that “reform” just means “change”, only with a positive spin.

      Any time you see “reform” you should mentally replace it with “change”.

  16. I really hope that the Commission take the opportunity to look at some real reforms that would be helpful. The idea of more SCOTUS justices (packing) should not get that much attention. It is a bad idea.
    What deserves more attention is a limited term for judges and justices. Long but not lifetime. Another thing would be to sort out the process for filing appointments near the end of a Presidents term. I would suggest that the Senate be required to address any appointments made earlier than 9 months before a Presidents term ends and require that no appointment for SCOTUS or the appellate courts be considered when the Presidents term has less than 3 months left.

  17. If they really want meaningful reform, their first proposal should be an amendment fixing the size of the Court at nine, to take packing off the table.

    Nothing would be a bigger trust builder.

  18. Somin sees the situation through a very partisan lens.

    Was it “high handed” for Democrats to reject Robert Bork?

    What would you call the indecent attack on Kavanaugh?

    There was a time when the senate deferred to the president, but that deference was not ended by high handed Republicans.

  19. > Thanks in part to the bad-faith behavior of Republicans (where the party first claimed it was wrong to vote on a Supreme Court nominee in an election year in 2016, and then took the completely opposite stance when it became convenient in 2020)

    Lol

    Democrats long ago establish partisan voting for SCOTUS. It is childish and ridiculous to think a GOP senate would vote for a Dem nominee if it didn’t have to.

    1. That is what intellectuals like Somin are: childish. On the one hand a very intelligent legal scholar, on the other doesn’t know squat about politics and pays no price for being wrong. Very similar to the intellectuals Thomas Sowell describes in his book “Intellectuals and Society.”

  20. Come on, Ilya! You knew what you were getting in to with supporting Creepy Joe. Don’t complain or clutch your pearls now that your man is going to embrace policies that will destroy the institutions you claim to support. You voted for this. Own it.

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