A Closer Who Look At Who Made The Cut For the SCOTUS Commission, and Who Didn't

Biden mostly limited membership to constitutional law professors who are in the SCOTUS club.

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Earlier today, I wrote about President Biden's new Supreme Court Commission. The administration selected three dozen attorneys for the part. Here, I will take a closer look at who made the cut, and who didn't.

First, almost everyone on the list is a constitutional law professor–by design. Biden's executive order stated that "Members of the Commission shall be distinguished constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States (Supreme Court)." If the President wanted to reform one of the most important and long-standing institutions in America, why on earth would he limit his search to "constitution scholars"? Constitutional law only makes up a small part of the Court's docket. And–present company included–constitutional scholars have a very limited perspective of important societal issues.

So many important groups are not represented. With the exception of Keith Whittington, I do not see any other political scientists. Already, political scientists are fuming on the ConLaw list serve about this omission. Also, other than Alison LaCroix, I do not see any historians. (And I mean someone who holds an appointment in a history department; not someone who has published about legal history in the Green Bag). This group would really benefit from someone who has studied the New Deal period, and the various aspects of FDR's court packing agenda. Also, I only counted two people who regularly appear before the Court: Walter Dellinger and Sherrilyn Ifill. Members of the Supreme Court bar should be on this commission. However, attorneys who make their living from the Court would never risk serving. Academic tenure is probably a prerequisite for service. Most importantly, the commission should have former members of Congress. They would have some expertise about what types of legislation may actually be feasible. I don't think anyone on the list has ever held any sort of elective office. And only a handful went through Senate confirmation. This list is skewed towards ConLaw professors who live in the ivory tower.

Second, the members of this list reside in what I will call the SCOTUS club. Many of them clerked on the Court. They file briefs before the Court. They speak about the Court in public. They write about the Court. They recommend their students for SCOTUS clerkships. This group has every interest to not piss off the current members of the Court–even with academic tenure. We know how Justice Breyer feels. And the others probably agree. If any member supports Court expansion, clerkship applications from their students will be tainted. How can this group possibly be expected to make any serious reform efforts for an institution they are closely connected to? In this regard, political scientists would be sufficiently removed from the Court's impetuous vortex to make objective recommendations.

Third, I hope the members in this club are ready for some serious trolling–both on the right and the left. Consider editorials from the Wall Street Journal and Slate. The WSJ attacked former Judge Tom Griffith for being too liberal.

Former appellate Judge Thomas Griffith, a Bush appointee, was a member of the Code of Conduct Committee of the U.S. Judicial Conference that tried to ban judges from belonging to the Federalist Society. Judge Griffith was going along for that ride until we reported the news and hundreds of federal judges objected.

And Slate attacked Griffith for being too conservative.

And what about Thomas Griffith, a former judge on the U.S. Court of Appeals for the District of Columbia Circuit? Griffith stepped down in 2020 so Donald Trump could replace him with a partisan hack.

Neither claim is accurate or fair. But truth does't matter. The members of this Commission must be destroyed. And make no mistake. People on the left, who are used to adulation by their students and the press, will soon be in for a rude awakening. Insufficient wokeness will provide a license for social media attacks. Moderation is not a virtue for partisans who demand more Justices. People like my friend Adam White are used to such nonsense. But many of the professors on this list lack any meaningful social media presence. I wish them luck. They are in for a rude awakening.

Fourth, there are many names absent from this list that I expected. Now, I mention these names with some hesitation. It is possible these people were offered the role, but they declined for a host of reasons. Maybe these people preferred to be on the outside, which would allow them to work the media. Who knows?

I expected Dan Epps and Ganesh Sitaraman to be on this committee. They wrote the leading article on options for Court reform. Maybe they will be witnesses, who can provide their unvarnished opinions in ways they could not as members. But they will not be in the room where it happens.

None of the members of the Take Back the Courts Advisory Board are on the list. Not Mark Tushnet. Not Michael Klarman. Not Samuel Moyn, who wrote a memo to Congress about using budget reconciliation to add lower court seats. (Slate lamented his omission). Again, perhaps all of these members resisted an invitation because the commission was doomed to fail. But they lack any seat at the table.

Also, none of the leading law professors of Twitter are on the list. Not Leah Litman. Not Josh Chafetz. Not Steve Vladeck. (Slate lamented his omission). And so on. They are the most vocal avatars about "Court Reform." And they were all left off the panel. Indeed, these people are probably best prepared to handle the social media onslaught we will see. Perhaps the Biden Administration did some sort of social media screen, and avoided anyone with controversial tweets. But then we have Laurence Tribe.

What are we left with? A group of mostly-reasonable people who will write a reasonable report that will make no one happy. I agree with Slate:

Looking at the membership and goals of this commission, it seems obvious that Biden does not really want to pursue court reform. Rather, he appears eager to scrape the issue off his plate by tossing it to (and I say this lovingly) a bunch of eggheads who have spent their careers marinating in the fantasy that the Supreme Court is apolitical

Perhaps the one up-shot of this experiment is that all 36 members will be able to write articles about their experience. Who knows? Yale Law School can host a two-day symposium with all of the members, and publish a collected book volume in a few years. At that point, there will still be nine Justices.

NEXT: "Provably False" to Call Club Owner "Tragically Pathetic"?

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  1. “If the President wanted to reform one of the most important and long-standing institutions in America, why on earth would he limit his search to “constitution scholars”?”

    The key to understanding this is that a lot of “constitutional scholars” study the Constitution in the same way pest killers study entomology. If you want to circumvent, not follow, the Constitution, they’re you you’d go to.

    1. Uh huh. And what reforms do you predict they’ll suggest that “circumvent, not follow, the Constitution”? I’ve read a lot of speculation on possible conclusions and 99% of it doesn’t match that description. A person might suspect you’re indulging in your usual thought-free conspiratorial blather……

      1. Well, the proposal to put involuntarily justices on “senior status” is certainly a constitutional circumvention.

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  2. “Looking at the membership and goals of this commission, it seems obvious that Biden does not really want to pursue court reform.”

    I think that’s only the case, if by “court reform” you mean some sort or other of Court packing. For instance, if he’d selected Tushnet, I’d absolutely think the goal was Court packing, because Tushnet is a strong and unapologetic advocate of packing the Court, explicitly to produce a left-wing rubber stamp.

    There are probably any number of ‘reforms’, which such a panel might suggest. They just likely wouldn’t be the sort that aim at turning the Court into a rubber stamp.

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  3. How can this group possibly be expected to make any serious reform efforts for an institution they are closely connected to?

    Why would we expect the democrats to be serious about REFORM?
    Their interest is in conquest.

    1. Of course Biden could have appointed a commission expressly designed for “conquest”. In fact, that’s what most people predicted, including Professor Blackman countless “rules” back. Instead he clearly did the exact opposite. Why not adjust your conclusions to deal with reality? Give’t a try…..

  4. “At that point, there will still be nine Justices.”

    Is consistency is an unaffordable luxury — or perhaps an unattainable attribute — at the fifth tier?

  5. “If the President wanted to reform one of the most important and long-standing institutions in America, why on earth would he limit his search to “constitution scholars”? Constitutional law only makes up a small part of the Court’s docket.”

    Weird that Blackman is a law professor and fancies himself a constitutional scholar and doesn’t realize that the heart of the question of ‘Should the supreme court be expanded?” is obviously constitutional and historical in nature and not reliant upon other bodies of law such as ‘tax law’?

    1. Tax law is important. But constitutional law trumps everything. If the Supreme Court gives a bad interpretation of a tax law, Congress can pass a new law that overrides the interpretation. If they give a bad interpretation of constitutional law, all Congress can do is start the constitutional amendment process or impeachment proceedings, both of which are much harder.

  6. If the President wanted to reform one of the most important and long-standing institutions in America, why on earth would he limit his search to “constitution scholars”? Constitutional law only makes up a small part of the Court’s docket.

    This is incredible.
    No one would believe this if you told them about it; it’s too pure.

    It’s poetry.

  7. Blackman : “Third, I hope the members in this club are ready for some serious trolling–both on the right and the left”

    Well, we know you’ll do your share……..

  8. As Shakespeare would say ‘sound and fury signifying nothing’. The more I learn about this the more I am convinced nothing will come of anything the commission recommends.

    1. Many, many trees will be sacrificed to generate millions of words about all possible considerations regarding the Supreme Court. Those on the commission will get huge book deals about the deliberations. Those not on the commission who are left wing will get huge book deals about what they should deliberate. Those not on the commission who are right wing will be silenced.
      And in the end, the democrats will do whatever they want to without regard to the commission or its “recommendations”.
      (personally, I think they just want to commission so they can say they tried, but this is a step too far for now. By the time they feel secure enough in their power to pack the court, they will no longer need courts)

  9. Either (1) Republicans will win enough elections to prevent enlargement of the Supreme Court or (2) the Court will be enlarged.

    In a nation whose electorate becomes less White, less rural, less religious, less bigoted, and less backward each day, the smart money is on (2). And the half-educated, superstitious, roundly intolerant money is on (1).

    May the better ideas (continue to) prevail in America.

  10. Why would you ever put a political scientist on a committee to determine anything? A political scientists main skill set is not to determine the best courses of action, but to determine how to justify the course of action they already chose.

  11. “So many important groups are not represented. With the exception of Keith Whittington, I do not see any other political scientists. Already, political scientists are fuming on the ConLaw list serve about this omission. Also, other than Alison LaCroix, I do not see any historians. (And I mean someone who holds an appointment in a history department; not someone who has published about legal history in the Green Bag). This group would really benefit from someone who has studied the New Deal period, and the various aspects of FDR’s court packing agenda.”

    Absolutely not. The structure of the courts is an issue of law. Political scientists are not constitutional law experts, and they generally just treat the courts as an arm of politics either.

    This is something where you want lawyers and law professors. Lawyers and their clients, and judges, are the stakeholders here. We are the ones who suffer if the courts are screwed up.

    1. “Anyway”, not “either”. Oops

    2. Lawyers and their clients, and judges, are the stakeholders here. We are the ones who suffer if the courts are screwed up.

      Seems to me the litigants themselves are the ones who suffer.

      1. I included clients.

        The basic problem here is that the discussion on court packing is dominated by a bunch of political science types who have views of the legal system that they would likely be disabused of the moment they had to represent an actual paying client. They basically view the Supreme Court as nothing more than a political actor who delivers victories to the parties in a few hot button cases involving social issues and major legislation. They have not a clue about how the legal system really works, the importance of stability of precedent, the importance of the courts being seen as independent arbiters, or what would actually happen if someone succeeded in expanding the Supreme Court to reverse the results of cases.

        The legal profession knows all this and knows how much our clients rely on a relatively stable legal system where everything is not constantly up for grabs. So we can represent our clients’ interests fairly well in this debate. Political scientists and other folks who haven’t studied or practiced law just tend to be ignorant about the real issues involved and salivating over a chance to reverse the results of cases they don’t like.

        1. Careless reading.

          Sorry.

  12. I think Professor Blackman is right here. Even if President Biden wanted to pack the court, which he has made clear he doesn’t, moderate Democrats in Congress would defeat any bill to do so. Politically it’s a dead letter unless Democrats both pick up significantly more seats AND throw out their moderates in the primaries.

    I agree that most of the people on the commission are not likely to be strong advocates of court-packing and a majority are likely to be opposed.

    1. Agree. To your point about not being strong advocates of court-packing….perhaps it is the case that it is just a very bad idea that lacks ‘civic common sense’.

    2. “which he has made clear he doesn’t,”

      ‘Come on, man!’ What he made clear before he was elected, was that nobody was entitled to know what he intended to do before he took office, and that’s all he made clear. He literally said that the voters weren’t entitled to know what he planned to do.

      1. Scandal!

        Candidate for office avoids taking stand on controversial issue!

  13. “Politically it’s a dead letter unless Democrats both pick up significantly more seats AND throw out their moderates in the primaries.”

    I believe that assertion misapprehends Democratic sentiment. Admission of states, Supreme Court enlargement, filibuster diminution (maybe by requiring that a filibuster be supported by senators representing a majority of the American population) or elimination, perhaps even enlargement of the House (and, with it, the Electoral College) all seem likely unless some unexpected developments (bipartisan legislation, for starters) disincline Democrats to use power.

    1. It depends on how ruthless the Democratic leadership are inclined to be. They could enact all those things, and more, with their present razor thin majority, but it would require tactics that would be politically poisonous, that even some of their own caucus would find objectionable.

      This means they have to either give up the whole program as a bad idea, or go all in, and attempt to render America a one party state. No middle ground is politically survivable.

      1. I don’t think things are as all-or-nothing as that. I think one or two of of these things, like modifying (not abolishing) the filibuster, might still be on the table. But I don’t think packing the Supreme Court is at this point.

        I agree, in general, that the Democrats’ razor-thin victories in the House and Senate don’t provide a large enough margin for large-scale structural change, in the terms of the practicalities of what those elsected are willing to support. They will need to persuade a larger share of the electorate if they want a greater mandate.

        Last fall, the Reverend preached a blue tsunami that would seeep everything in its path away. It didn’t happen. There was a sunstantial blue wave, yes, but not one as overwhelming as the good Reverend was preaching.

    2. Usually I just block the rev or ignore his moronic posts but not this one. One of the biggest takeaways of my last trip to Mexico was a comment made by a guy I met and spent considerable time with. His mom and dad were from Peru and the Republic of Ecuador who had moved to Mexico for a better life. He had graduated from the film school at what I will call the University of Mexico City where his parents lived. We met in Cabo where he was visiting to surf and travel. He made the comment that he trusted the Mexican drug cartels more than he trusted the Mexican government and went on to say this was common among Mexicans. He was also a surprisingly devout Catholic for a twentysomething kid. Both of these things suggest to me many peeps coming to the US, legally or not, are not really ideal candidates for dem voters. They are leaving a government they mostly don’t like, are religious, and anti abortion. They come from a place where guns are illegal; gut the police are well armed and the criminals even more so with the population often caught in the middle. Most of the ones I meet are hard workers who are looking for a better economic situation and not really wanting to give their hard earned wages to the government.

      Bottom line is they are looking to get away from more government and not supportive of pols who want more power.

  14. Congress should expand the Supreme Court — but not just so it better reflects the electorate. Rather, Congress should expand the Court to get more work done. At the present pace, conflicts among the Circuits remain unresolved and important legal issues remain unsettled. Such aloofness might have worked a hundred years ago but cannot work anymore. Indeed, it has reduced the Court to a legal relic — more to be ignored than followed. Meanwhile, the European Union has moved in strides tackling the complex legal issues of our day and showing the world how modern jurisprudence should be done. Time for reboot.

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