The Volokh Conspiracy

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The Tenth Rule of Court Packing Is Play Your Base By Appointing A Well-Balanced Commission With No Actual Mandate

Shortly after Justice Breyer signals he may stick around, and progressive groups demand a new Justice, President Biden appoints reasonable people to the Supreme Court Commission.

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It has been more than two months since my last post on Court Packing. On January 27, there were reports that President Biden was beginning to staff his Supreme Court commission. At the time, several prominent names were floated, including Jack Bauer, Cristina Rodriguez, Caroline Fredrickson, and Jack Goldsmith. According to Politico, there would be between 9 and 15 members.

Two months later, President Biden has finally released the mission, and membership of the Presidential Commission on the Supreme Court. I'll get back to the mission later. Let's start with the members. And we have gone way beyond 15 members. I count 36 members. And I will divide them based on how I perceive their place on the political spectrum. These assignments are fairly crude, and I apologize if I have mislabeled anyone.

First, there are twenty-four members who are from my vantage point left of center: Michelle Adams (Cardozo), Kate Andrias (Michigan), Jack Balkin (Yale), Bob Bauer (NYU, Co-Chair), Elise Boddie (Rutgers), Guy-Uriel Charles (Duke), Andrew Manuel Crespo (Harvard), Walter Dellinger (Duke), Justin Driver (Yale), Caroline Fredrickson (Georgetown), Heather Gerken (Yale), Nancy Gertner (Harvard), Bert I. Huang (Columbia), Sherrilyn Ifill (NAACP LDF), Michael Kang (Northwestern), Olatunde Johnson (Columbia), Trevor Morrison (NYU), Richard Pildes (NYU), Cristina Rodriguez (Yale, Co-Chair), Kermit Roosevelt (Penn), Bertrall Ross (Berkeley), David Strauss (Chicago), Laurence Tribe (Harvard), Michael Waldman (NYU).

Second, there are five members who I see as more centrist: Richard H. Fallon (Harvard), Tara Leigh Grove (Alabama), Alison L. LaCroix (Chicago), Margaret H. Lemos (Duke), David F. Levi (Duke).

Third, there are seven members who are right of center--including two of my fellow co-bloggers: William Baude (Chicago), Jack Goldsmith (Harvard), Thomas B. Griffith (D.C. Circuit), Caleb Nelson (UVA), Michael Ramsey (San Diego), Adam White (GMU), Keith Whittington (Princeton).

In short, liberals outnumber non-liberals by about 2-1 ratio. Those numbers are better than I had anticipated. On most law school faculties, liberals outnumber non-liberals by about 50-1. I'll take these odds!

From January to April, the commission has more than doubled in size. As a general matter, the larger the commission, the more difficult it will be to reach a consensus. I can't fathom the sheer amount of work it will take to manage this august group of really smart people. If each member is given five minutes for an opening statement, that process would take three hours! And if each member has five minutes to ask questions of a witness, there goes another three hours! Plus time for public comment and Q&A. Any public meeting with all 36 members would have to take a full day, and likely two.

Moreover, the writing process will be painful. Imagine writing a law review article with 35 co-authors. Now, try writing that article with co-authors who likely disagree on fundamental principles. Will there be majority opinions? Concurrences? Dissents? Plus all of the meeting will be in public. Every question and comment will be carefully scrutinized by advocacy groups on both sides of the aisle. No doubt bloggers and tweeters will attack positions they disagree with in real time, before seeing the final product. Get ready for the trolling, friends. And, by the way, President Biden has asked the group to complete its work within 180 days of the first meeting. Most scholars cannot write a book by themselves in that period of time. (Maybe Cass Sunstein and a few others can). Try writing a book with 35 not-so-likeminded colleagues in less time. I do not envy the members of this commission. Oh, and there is no compensation for service.

Now, onto the mission. Indeed, the narrow mission may mitigate the concerns I've raised so far. President Biden also issued an Executive Order to establish the commission. Section 3 provides:

Sec. 3.  Functions.  (a)  The Commission shall produce a report for the President that includes the following:

(i)    An account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional Asystem and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court;

This portion should not be too difficult. A summary of the debates about the Court. There are plenty of tweets to cite.

Next, a survey of past proposals for reform:

(ii)   The historical background of other periods in the Nation's history when the Supreme Court's role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform; and

Here, we will get a rehash of FDR's Court Packing plan from 1937. The next portion is the most controversial: a summary of arguments for and against "Supreme Court reform," whatever that is:

(iii)  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 EO does not explain what "Supreme Court reform" means. But the press release offers some guidance:

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.

The President expects a solicitation of public comment:

(b)  The Commission shall solicit public comment, including other expert views, to ensure that its work is informed by a broad spectrum of ideas.

Dare I submit something?

And there is a 180-day deadline after the first meeting.

 (c)  The Commission shall submit its report to the President within 180 days of the date of the Commission's first public meeting.

Keep it mind it may take several months to put a meeting together. Accommodating the schedules of 36 very busy people will not be easy. We are probably looking at a report in late 2021 or early 2022.

Now something is obviously missing from this report: a recommendation. The New York Times explains:

It is not clear that the commission established by Mr. Biden will by itself clarify his position. Under the White House order establishing it, the commission is not set to issue specific recommendations at the end of its study — an outcome that is likely to disappoint activists.

As I understand this Commission, its report will be purely descriptive. There will not be any recommendations of what to do. Thus, dissents are probably unlikely.

What are we left with? Thirty-six very smart people will put together a comprehensive report that will collect dust on a virtual book shelf. It will be like another edition of the Holmes Devise. If I was a progressive activist, I would be fuming. Biden is playing his base.

Finally, the timing here could not be more inconvenient. Earlier this week, Justice Breyer gave a full-throated defense of the Court as a non-political institution. He warned against Court Reform. And, he did not clearly signal he was willing to step down before he was ready to. (Though his clerk hiring may suggest otherwise; Update: David Lat now notes that Breyer has hired all four clerks).  Demand Justice and other progressive groups are publicly calling on Breyer to retire. And how does President Biden respond to this pressure? Appoint a commission with reasonable people that may release a report around Thanksgiving that will not make any recommendations.

For those with a sense of nostalgia, you can see my prior Court-Packing posts here: Rules # 1, 2, 3, 4, 5, 6, 7, 8, 9.