Supreme Court

Biden Releases Names of Members of His Supreme Court Commission [Updated]

It's a genuinely bipartisan and cross-ideological group. And one that isn't good news for advocates of court-packing.

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The Supreme Court. 

Earlier today, President Biden issued a list of the members of his planned Presidential Commission on the Supreme Court of the United States. This is the judicial reform commission he promised to create during the presidential campaign. As expected, the Commission will be co-chaired by former Obama White House Counsel Bob Bauer, and Yale Law School Professor Cristina Rodriguez. Most of the rest of the members are legal scholars, including my fellow Volokh Conspiracy bloggers Will Baude (University of Chicago) and Keith Whittington (Princeton).

Perhaps more importantly, this is a genuinely bipartisan and cross-ideological group. In addition to Will and Keith, there are several other conservative or libertarian members, including Jack Goldsmith (Harvard), Judge Thomas Griffith (formerly of the DC Circuit), Michael Ramsey (University of San Diego), Tara Leigh Grove (University of Alabama), Caleb Nelson (Univ. of Virginia), and Adam White (my George Mason University colleague). This group will be in a minority on a commission with some thirty-six total members (if I have counted correctly). But it will be large enough to have some real clout.

I won't go through their credentials here. But the commissioners, both left and right, are an impressive group with a vast array of knowledge and experience collectively including almost every aspect of the Supreme Court's work.

As I predicted back in January, the composition of the Commission is also bad news for advocates of court-packing, who may have hoped that it will produce a report endorsing the idea. Obviously, I am confident none of the right-of-center members would endorse such an idea. But several of the liberals (including co-chair Bob Bauer and Laurence Tribe) are also on record opposing it.

There are likely some court-packing advocates in the group. But it is highly unlikely they can command majority support in the Commission. The same goes for various proposals to enact court-packing by another name, such as "rotation" and "court balancing."

While the Commission is unlikely to endorse court-packing, it could potentially agree on other reforms that have much broader cross-ideological support, such as 18-year term limits for Supreme Court Justices. I support that idea myself, but also believe it requires a constitutional amendment. By contrast, some legal scholars (including commission member Jack Balkin), contend that it (or something close to it) can be enacted by ordinary legislation. That issue may well be a focus of debate within the Commission.

One interesting aspect of the Commission is that its mandate will be limited to considering proposals to reform the Supreme Court only:

The Commission's purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court's role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court's case selection, rules, and practices.

I take it this means they will not consider possible reforms to the rest of the federal judiciary.

Most presidential commissions don't amount to much. They often end up just issuing reports that are quickly forgotten, doomed to gather dust on bookshelves. That could well be the fate of this commission, as well. But there is at least some real chance it could be an exception, if it can reach a broad consensus in favor of term limits or some other similar proposal.

The Commission will hold hearings where it will take testimony from experts, and is required to issue a report within 180 days of its first public hearing. I, for one, look forward to reading it!

UPDATE: It's worth noting that the Commission could potentially provide an analysis of possible reform options, without actually making a recommendation. Co-blogger Josh Blackman suggests that its mandate may not allow it to recommend anything. But the executive order outlining the Commission's goals indicates that, among other things, it will provide "an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals." To my mind, "an appraisal of the merits and legality of particular reform proposals" allows (and perhaps even requires) the Commission to endorse or reject specific reforms.

Thus, the Commission could issue a report backing one or more specific reform proposals. Whether that backing takes the form of an official "recommendation" may not matter much.

NEXT: Revisiting the Issue of whether Justice Cardozo was the First Hispanic Justice

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  1. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

    Exactly what part of the above permits Congress to remove them after an arbitrary number of years? Serously.

    And one thing which you may not have thought about is how much of a loose cannon a term-limited former Justice could become. Can you not see citizen Antonin Scalia calling for the impeachment of then-President Obama, and the credibility he would have in doing so?

    1. Can you not see citizen Antonin Scalia calling for the impeachment of then-President Obama, and the credibility he would have in doing so?

      Quit projecting your idiosyncratic brain on the American populous.

      1. Idiosyncratic, yes.

        Brain, not so much.

        I’m sure the first thing on a hypothetical ex-Justice Scalia’s mind would have been calling for Obama’s impeachment, and that once he did so Obama would be out in no time.

        Sure, Ed.

      2. A fine rebuttal, full of virtue signalling and devoid of actual rebuttal.

        Keep up the good work.

        1. Dude said Scalia would add credibility to an effort to impeach Obama.

          That’s a counterfactual he cannot prove. It says a lot about what he thinks is true, but provides zero probative value.

          Do you disagree?

          1. Perhaps if you had used that for your original comment, it would have been a real rebuttal.

        2. It’s a ridiculous comment that deserves no more than mockery.

  2. > such as 18-year term limits for Supreme Court Justices. I support that idea myself, but also believe it requires a constitutional amendment.

    Naw, we just kill them after 18 years. Problem solved.

    Like carousel in Logan’s Run

    /s (if it needed to be said)

  3. Term limits would mean that after 18 years justices rotate off to one of the circuits. They’re still judges, just different kinds of judges. This is not rocket science for anyone with their eyes not squeezed shut.

    1. It’s not rocket science, but it doesn’t address the issue here: You’re not nominated to be a judge, and, oh, here, we’ll put you on the Supreme court, it has an opening.

      “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,”

      You’re nominated TO the Supreme court. It’s a separate “office” from the circuit courts. Shuffling them off to a circuit court IS removal from the Supreme court.

      1. What are your thoughts on the alternative of “assuming ‘senior status’ after 18 years on the S.Ct.”?

        I.e., they stay on the S.Ct.. Features would include continuing to draw the salary required by the Constitution; can fill in to maintain a 9-justice panel when one of the “active status” justices recuses (or dies while on active status); can still ride circuit.

        And with the current trend of younger justices, there will be a decently deep bench for recusals/deaths once a few rotate into senior status.

        1. Voluntary assumption of senior status is one thing. Forced?

          The whole point of holding office unless impeached, is that they can’t be stopped from judging cases.

          So, no, they can’t be forced to take senior status. Short of a Constitutional amendment.

          1. There doesn’t appear to be a constitutional problem with requiring judges on the Courts of Appeal to take senior status.

            They remain justices; their compensation is not reduced (complying with Article III, Sec. 1). They can still judge some cases.

            What’s the constitutional problem from the constitutional text?

            Would it make a difference if the “18-years then senior status” rule is only applied prospectively to new justices?

      2. This all made sense when the founders believed the people selecting the President who would appoint the judges and the Senators who would ultimately confirm them were white men with property. Not 85 IQ Somali jihadists, Guatemalan peasants with four illegitimate children, and emotional women.

    2. Has anyone looked into age at appointment and historical length of service of Supreme Court Justices?

      It seems to me that historically Justices were both older than is currently the case and didn’t live as long.

  4. “Reform” is a progressive democratic keyword, just as “fair share” and “common sense” are key phrases of theirs. Reform only means to change something to align with their party or movements goals and objectives. The SCOTUS doesn’t need reform, it needs protection from partisans.

    1. I dunno, I’d like to see real time streaming of oral arguments as one example.

      1. I’d like to see them have to publicly vote on granting cert. No more leaving us in the dark about who didn’t want to take a case.

        1. That would be a good one.

    2. Reform only means to change something to align with their party or movements goals and objectives.

      This looks like you’re saying all attempts to improve the current system are bad because all change helps the opposition.

      And yet, from previous posts, the current situation makes you furious as well.

      Fear of change, hatred of the status quo. You’ve nearly trapped yourself.

      1. The point is to be angry all of the time.

        1. As concise a summary of the right-wing commentariat here as can be devised. Whatever one thinks of Kirkland’s clinger schtick, they provide him constant opportunity to employ it by stepping on their anger rakes over and over.

      2. Conservatism does not say there should be no change, just that there is value in established tradition, so it should only be changed with great deliberation.

        And we now have 36 Great Deliberators!

        1. I’m not saying anything about conservativism, only Publius.

          But also conservativism has left Burke way way behind.

      3. Sarcast0, you are making things up.

        I never said I didn’t like the current situation, i.e., 9 justices, etc.

        I’m not saying I’m opposed to improvement, I’m saying that dems are being cynical, and say they must reform the court when in fact they just want to tilt it in their favor.

        1. Except your post about reform and fair share and common sense isn’t limited to the Court, is it?

  5. Any major structural changes to the court should have a delayed timer for enactment. Sort of like a Rawlsian veil of ignorance. Reforms go into effect after one or two presidential elections have occurred, so that no one can anticipate which party will benefit most from the reforms.

    1. How about they apply only to justices who are appointed after the enactment?

  6. Has anyone canvased the writings of the 36 to see how many have taken a position the idea of court packing or any of the other commonly suggested reforms?

    My own opinion is that it’s a progressive idea without much support outside a limited audience.

  7. Forgive me for being cynical about politics, including the politics of Presidential commissions, but for the moment, this commission and its terms of reference indicates to me that Biden doesn’t want to push for court-packing. But he probably wants to keep his options open in case something happens to provide a political push for court packing – eg, combine an overruling of *Roe v. Wade* with some kind of scandal from which Biden (or Harris) wants to provide a distraction, and court-packing could be back on the table.

  8. Will any of them flat out say “maybe we shouldn’t do this” ?

    1. If you are referring specifically to court packing, my guess is that quite a few of them will say that without the maybe.

  9. lol. Law Professors are more naive than a kindergardener, Somin more naive than most. With the 2-1 majority, the liberal fix is in, for court packing. Under the fig leaf of bipartisanship (“A bipartisan consensus”).

    The commission does not need a recommendation, the conclusion is drawn. The goal is for 24 law professors to write briefs rationalizing court packing.

    1. Yes, it’s a liberal plot and you are doomed. And the OP is all lies.

      1. Who would’ve guessed that Will Baude and Michael Ramsey are liberal plotters?

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