The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Ninth Rule of Court Packing Is Appoint A "Court Reform" Commission One Week After The Inauguration

It's been nearly three months months since my last Court Packing post.


Recently, I wondered when Biden would begin to staff his "court reform" commission. Today, Politico reports that the process has begun.

The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary.

The commission will be housed under the purview of the White House Counsel's office and filled out with the behind-the-scenes help of the Biden campaign's lawyer Bob Bauer, who will co-chair the commission. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have alreadybeen selected, according to multiple people familiar with the discussions.

Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who will join Bauer as co-chair. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said. 

"The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks," a White House official said in a statement.

The recruitment of members is still ongoing, but a source familiar with the discussion expects between nine and 15 members total to be appointed to the commission. Rodríguez and Goldsmith did not respond to a request for comment, and Fredrickson declined to comment.

I am grateful Jack Goldsmith is on that commission. His name is the only right-of-center person identified by Politico. Goldsmith has worked closely with Bauer in recent years. My hope is that there is some balance. In any event, given the current tilt of Congress, any substantial change is unlikely during the next two years or so.

For those with a sense of nostalgia, you can see my prior Court-Packing posts here: Rules # 1234567, 8.

NEXT: Can California Employee Be Fired for Attending the Jan. 6 Protest at the Capitol?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Elections have consequences.

    Maybe the GOP should have looked a little further ahead when they decided to deny Obama's SC nomination hearing, and followed that up with AOC's confirmation.

    If you want to play hardball, be prepared for your opponent to play hard back.

    1. "Something something hypocrisy, something something hypocrisy" is never a winning argument.

      1. 'Progress, education, tolerance, science, modernity, freedom, reason, inclusiveness' is a winning argument in America.

        'Backwardness, ignorance, bigotry, dogma, authoritarianism, superstition, insularity' is not.

        May the better ideas continue to win.

        Of course, that's easy for me to say.

        1. That, Rev, is even stupider.

    2. Yeah if the GOP didn't invent the concept of judicial hardball in 2016 Garland and did everything the Dems want. Maybe they'd be nicer!

      Its not like the Republicans had made conciliatory gestures under Shrub and long before in lower courts and got nothing for it and the Dems had played dirty long before Garland with Bork and Estrada etc. And in general the side in power does what it wants and if the Republicans had caved on Garland you'd just be in here spouting another excuse for why the Dems are doing what the want.

      No the completely mature adult Dems would totally be shipping in moderate judges by the boatload today in this age of Transgender bathrooms and Defund the police and Smashing of White Patriarchy if only those mean Republicans hadn't given them a booboo in 2016!

    3. "AOC’s confirmation"

      Oh, crap, when was *that*?

    4. There have been 27 vacancies on the Supreme Court during presidential election years. 17 times, the President and the Senate majority were in the same party. The other 10 times, the President was not in the same party as the Senate majority, and only two of those 10 nominees were confirmed.

      Yes, something that is totally unremarkable and perfectly in line with historical precedent is . . . . justification for court-packing! Nice derangement you have there.

      1. There have been a number of increases in the Supreme Court's size, and a decrease or two. Court enlargement is established precedent and -- given the country's expansion and the point that the circuits now outnumber the Justices by four -- seems overdue.

        Admission of a couple of new states first, though.

        America just keeps getting bigger and better, thanks to its liberal-libertarian mainstream.

  2. He's bringing back the hits!

    C'mon, Josh.

    Play Blue June again! Or Freebird.

  3. I see, more unity incoming from our friends on the left. Got it.

    1. That's the Democrats.

      Don't mistake them for people on the left.

    2. Grab your ankles, clingers, here's some more unity and togetherness coming your way!

    3. We do not unite with terrorists

  4. The first rule of bad-faith argumentation is to accuse your opponents of what you're guilty of. Projection remains a hell of a drug.

    1. Lets See

      Racism: 99% of the time race is brought up or made an issue its from someone on the Left
      Sexism: Ditto
      Sexual Orientation: Ditto
      Violence: The CAPITOL SIEGE INCIDENT OF ONE DAY IS THE ONLY RIOT IN HUMAN HISTORY despite far more longer destructive and deadly riots from the left continuing to this (very day) noone cares about.
      Corporate Influence: Majority of big Corporations publicly tow SJW line. Big Tech helped win the election for Biden.
      Foreign Influence: China is probably the biggest foreign soft power influence in the world, and they were TEAM BIDEN
      Misinformation/Brainwashing: MSM need I say more.

      I could go on and on.

      1. Yes, we understand that you have a vivid imagination.

        1. Which point did I make that isn't true?

          1. Considering that you pulled numbers out of your ass:

            All of them.

            Considering that you clearly think there is only "Left" or "Right" in the political world:

            All of them.

  5. " Its specific mandate is still being decided. "


  6. There are many things I might be nostalgic for, but Blackman's posts are not among them.

    1. Coulda surprised everybody here more if you'd not commented on a post you're not interested in by an author you're not interested in.

      1. That would mean that he would miss an opportunity to give off a silly supercilious aire.

  7. "any substantial change is unlikely during the next two years or so"

    That depends on whether they can nuke the filibuster.

    1. Democrats could just connect judicial reform with budgeting and using the budget reconciliation process to enact changes with a majority vote.

      An added bonus is Josh will have more content to opine on, which will give him more posts to put on his CV. It's really a win for everyone.

  8. expects between nine and 15 members total to be appointed to the commission

    Pretty safe bet. They'll start with 9, and if it doesn't reach the desired outcome they'll just keep adding more until it does....


  9. Later on the tour of the new United States of Banana Republics....

    And now we come to the exhibit on legitimacy of government. Here in the USBR we give a hat tip to our institutions by heaping on praise when they do the "right thing", but when they do the "wrong thing" all we have to do is add more seats or make more states! That is the beauty of the BR system of government. You can just "fix" it like that and everyone still thinks the decision making process is legit! It is a great system we have here in the USBR.

  10. Biden has to create the commission; he promised to do so, and the progressive wing of the party would be upset if he didn't. But Biden in his public statements has never shown great enthusiasm for court packing, and given the Senate's current makeup I would guess that court packing has no chance for the time being. I predict it's more likely that the commission report will focus on: (1) whether legislation should be enacted regarding when high court nominations should be shelved (Garland) and when they should be voted on (Barrett); (2) whether justices should serve for a term of years rather than for life (probably not, but an argument in favor can be made); (3) whether there should be either a mandatory retirement age or an age after which there's a financial incentive to retire (i.e. reduction in pay or in retirement benefits).

  11. This commission is a solution in search of a problem.

    One can hope it's just Biden placating the leftist loons with an empty gesture that will result in nothing but some tepid recommendations that won't be implemented anyway, as results from most of these stupid commissions.

  12. I don't think we'll see any Court-packing but over the past year or so a certain prominent legal blog has seen a lot of Josh-packing.

  13. Balance is when opposing sides push things in opposing directions with equal force

Please to post comments