The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As Ilya noted, earlier this week President Biden's Commission on the Supreme Court issued its final report on various reform proposals. I was a member of that Commission, and now that a couple days have gone by, I'm finally free to talk about the matters that we considered.
So I have posted working paper up called Reflections of a Supreme Court Commissioner.
Here is an excerpt from Part I:
As I see it, there are two ways to approach Supreme Court reform. One is to look for reforms that would be good regardless of whether one agrees with the Court's current decisions. Such an approach benefits from bipartisan expertise. The other approach is to look for reforms that will make the Supreme Court's decisions better. Such an approach is unlikely to be bipartisan given polarization about legal issues, but it is not trying to be.
In my view both approaches to reform are valid. . . . But much mischief and frustration comes from confusing these two. There is no point in having a bipartisan commission of experts to consider reforms designed to influence the Court's decisions. The Court's decisions are supported by experts on one side or another. If the experts do not agree on whether the decisions are bad, there will be no common ground for reform. And activists who think the Court's decisions are a threat to freedom or democracy will not be swayed by the lack of a consensus among those who lack their commitments. In my view both methods of analysis and advocacy are valid, so long as we do not have illusions about what we are trying to do.
And on the question of whether it matters whether outcome-motivated court-packing is constitutional:
Does it matter whether there are any legal limits?
I don't know, but it might.
. . . imagine a moderate lawmaker (even a President …) who opposes court-packing as a matter of policy. He believes it would be imprudent, unwise, or at least premature. But he is receiving great pressure from those on his left to support it anyway. If his only objections are matters of policy, it is simply a political question whether to succumb to that pressure. But if he were to believe that it is unconstitutional, then his constitutional oath leaves him no choice but to do the right thing.
And here is the final part, Part VI:
I have great respect for my talented colleagues on the commission. I'm sure some of them would disagree with some of the points above, and some of them might have persuasive counterarguments that would change my mind on some points. Unfortunately, the law and structure of the commission made it very difficult for us to have the kind of deliberations and discussions that the country deserved.
The biggest problem was the Federal Advisory Committee Act, a statue I had never thought much about, which required that all of the collective deliberations of the commission be done in public. Public meetings are both cumbersome and politically fraught, so to many people the more attractive alternative is to accomplish as much as possible through working groups, one-on-one conversations, and other interactions that fall outside of the statute. By necessity, these interactions are not visible to most commissioners. That is part of what makes them lawful. Thus, the ironic effect of a statute designed to promote the transparency of the commission to outsiders was to instead dramatically reduce the transparency of the commission, even to its own members.
This was exacerbated by other factors – the size of the commission, the distribution of different views across different leadership roles, Zoom, and other operational constraints – and I fear that the result was to squander the overflowing amounts of intellectual ability and political judgment that filled the commission.
At the same time, whatever the constraints, there would have been no escaping the fact that the commission found itself operating in two different modes – an intellectual one and a more political one. Those two modes produce a natural tension. A political problem can be solved through omitting, watering down, or waffling on the controversial parts. But doing so cuts against making an intellectual contribution. And vice versa: concrete intellectual claims can be unpalatable, especially to a committee.
Perhaps under better circumstances the commission could have navigated those two modes in a way that made a real contribution. But I guess we will never know.
Download the whole thing here.
I've also recorded a podcast episode of Divided Argument with Dan Epps, who testified as a witness in front of the commission, where we go back and forth about the process and some of our proposals for reform.
Out of Whack
We've been waiting for months to bring you this one: we can finally talk about the President's Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.