The Volokh Conspiracy
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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.
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