President Biden Fulfills Promise To Create A Bipartisan Commission On The Supreme Court

Oh, the lazy media villagers are back at it again. They reflexively parrot talking points from far-right media. Pay attention lazy media villagers: a bipartisan commission (something you all demand) to study reforms to the U.S. Supreme Court, which has not in any serious way occurred since 1869 – long overdue dontcha think? – is not “court packing” in any way, shape or form. So just stop with your lazy parroting of right-wing talking points already.

By the way, Senator Mitch McConnell has already “packed the court” with conservative ideologues. And he has packed the lower federal courts with conservative ideologues selected by the Federalist Society, several of them rated “unqualified” by the American Bar Association. This is the “court packing” that you should be apoplectic about. Where were you?

Just to be clear, the Constitution does not stipulate how many justices should serve on the Court — in fact, that number fluctuated until 1869. Only since 1869 have there consistently been nine justices appointed to the Supreme Court.

The New York Times reported last week, Biden Creating Commission to Study Expanding the Supreme Court:

President Biden on Friday ordered a 180-day study of adding seats to the Supreme Court, making good on a campaign-year promise to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices.

As I have previously explained, there are eleven circuit courts of appeal, plus the D.C. Circuit and the Federal Circuit in Washington, D.C. For decades, Republicans have argued for splitting the Ninth Circuit into two circuits, which given the population increase in the West and the demands on the court system is a reasonable suggestion. So now we would have twelve circuit courts of appeal, plus the D.C. Circuit and the Federal Circuit in Washington, D.C.

It would be perfectly reasonable and rational to expand the U.S. Supreme Court to thirteen justices, so that each justice on the court is individually responsible for supervising a circuit court of appeals. This would not be “court packing,” you lazy media villagers. It would be a long overdue structural reorganization and reform of the federal appellate court system.

[W]hile Mr. Biden, a former chairman of the Senate Judiciary Committee, has asserted that the system of judicial nominations is “getting out of whack,” he has declined to say whether he supports altering the size of the court or making other changes — like imposing term limits — to the current system of lifetime appointments.

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.

In his executive order on Friday, the president created a 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.

The panel will be led by Bob Bauer, who served as White House counsel for Mr. Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.

Progressives say that Republicans unfairly unconstitutionally gained an advantage on the court by Sen. Mitch McConnell blocking Mr. Obama’s nomination of Judge Merrick B. Garland in 2016, and they see adding seats to the court, setting term limits or instituting other changes as a way to offset the power of any one president to influence its makeup. Conservatives have denounced the effort as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.

There’s your lazy Republican talking point for ya. “Hey, it worked for us in 1938, let’s do it again!” There is no comparison to the federal court system today. There is an ongoing judicial crisis of a shortage of federal judges today.

U.S. District Judge Diane Humetewa was joined by other judges and law professors [in February] who called on Congress to fill vacancies and consider reforms for the justice system to streamline operations and share some of the load. Judge: Arizona federal courts are overloaded, overworked:

“In Arizona, the status quo simply cannot meet the constitutional mandate to administer meaningful justice to all,” Humetewa told a House Judiciary subcommittee.

But Arizona is not the only district that is struggling. Kimberly J. Mueller, chief judge for the Eastern District of California, likened federal judges’ situation to Sisyphus of Greek myth, “condemned eternally to roll a boulder uphill, only to have it roll down again when he reaches the top.”

“For 20 years plus, we’ve been in a judicial emergency, we cannot fulfill our obligations without Congressional action creating new judgeships,” Mueller said.

Their pleas had a receptive audience at the hearing, with lawmakers from both parties expressing support for judicial relief.

“Arizona desperately needs more federal district judges and the district court has been working with too little for too long at the expense of Arizonans, who should have fair unobstructed access to our country’s judicial system,” said Rep. Greg Stanton, D-Phoenix.

Rep. Darrell Issa, R-Calif., said “while the decision for new judgeships is overdue, it is also important that we do it on a bipartisan basis.”

As for expanding the U.S. Supreme Court to supervise this expanded federal judiciary, Elie Mystal of The Nation goes much bigger than simply expanding the Supreme Court to 13 justices as I explained above. He suggests making the Supreme Court large enough – adding up to 10 justices – to operate like the Circuit Courts of Appeals on a panel system. If We Don’t Reform the Supreme Court, Nothing Else Will Matter (excerpt):

There is, however, a way to reimagine court packing as a form of judicial reform instead of partisan reprisal. The reform involves making the Supreme Court operate like the Circuit Courts of Appeal. These courts are partisan, to be sure, but they’re not facing the same legitimacy crisis that we’re seeing on the Supreme Court. That’s because, in addition to the fact that many have more members, they have two things the Supreme Court doesn’t have: panels and ethics.

Once they’re appealed to the circuit court, most cases are initially heard by a three-judge panel. These panels are chosen at random from the members of that circuit. The panel renders a decision, and most of the time, that ruling is final. It takes a vote by a majority of the circuit to agree to have the case heard en banc (that is, in front of a full court). Only a vanishingly small percentage of cases ever make it there. The Second Circuit, for instance, hears less than 1 percent of its cases en banc.

Panels are great for the appearance of legitimacy. The random wheel makes it impossible to predict which judges will get which case and thus the way that a case will go. The court can still overrule a panel en banc, but again, it takes a majority to do so. That’s a significant contrast with the way the current Supreme Court operates. It takes only four votes—a minority—for the court to grant certiorari and agree to hear a case as a full body.

Panels don’t remove partisanship from the lower courts. There’s a reason Democratic state attorneys general rush to the Ninth Circuit and the Republicans rush to the Fifth. But that’s why adding justices is a critical part of reform. Packing the court could mean more diversity—more ethnic diversity, more gender diversity, more diversity of thought and experience. That diversity itself would be a moderating influence on the court.

[I] said earlier in this piece that moderate justices don’t really exist, moderate opinions are written all the time. They come into being when judges write opinions as narrowly as possible in order to attract a majority of their colleagues to sign on to them. The Ninth Circuit operates with 29 active judges, the Fifth Circuit with up to 17. In the case of en banc hearings, it’s almost impossible to imagine a string of 15-14 or 9-8 cases on those circuits that would have the same sweeping impact as the torrent of 5-4 opinions we can expect from the Supreme Court this June.

Moving the Supreme Court to a panel system is an idea that reformers, scholars, and even some judges have suggested.

(Mystal goes on to address his second point, ethical guidelines for the U.S. Supreme Court, which is included in H.R. 1/ S. 1 the For The People Act.)

Mystal also linked to a proposal from the group Fix the Court for a system of fixed 18-year terms staggered to ensure an even distribution of presidential appointments. After 18 years, judges would shift to senior status, a well-established circuit court practice. Some claim this would violate the Constitution. But it seems clear that the court itself could rule otherwise, and there are good reasons to think that it should. That idea has gained increasingly broad ideological support, but as Mystal acknowledges, the existing court would likely strike it down (citing the plain text of the Constitution).

The New York Times continues:

The issue of whether to alter the size of the court, which has been set at nine members since just after the Civil War [1869], is highly charged, particularly when Congress is almost evenly divided between the two parties. An attempt by Mr. Biden to increase the number of justices would require approval of Congress and would be met by fierce opposition.

The commission is intended to provide a forum to debate the issue that is protected from the passions that will continue to rage in the political arena, according to people familiar with Mr. Biden’s intentions.

The president understands, they said, that changes to the size of the court, or limitations on the length of time that a justice can serve, would be “reforms for the ages” that would have far-reaching implications for the courts for decades, not just during Mr. Biden’s time in office.

* * *

“There’s growing recognition that the Supreme Court poses a danger to the health and well-being of the nation and even to democracy itself,” said Aaron Belkin, the director of the group Take Back the Court. “A White House judicial reform commission has a historic opportunity to explain the gravity of the threat and to help contain it by urging Congress to add seats, which is the only way to restore balance to the court.”

Mr. Biden has refused to clarify his view on the issue and instead, in an interview on “60 Minutes” in October, promised to create a commission.

“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack,” he told Norah O’Donnell of CBS News.

Mr. Biden may get his own chance to shape the court this year if Justice Stephen G. Breyer retires at the end of the current term. Justice Breyer, 82, is the oldest member of the court and the senior member of its three-justice liberal wing. Progressive groups are becoming increasingly aggressive in demanding that he step aside while Democrats still control the Senate and the confirmation process.

But Justice Breyer warned this week that efforts to expand the court for political reasons could undermine the trust that the public has in the court and the decisions that it makes on important issues.

“I hope and expect that the court will retain its authority,” he said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

E.J. Dionne of the Washington Post responds, Respectfully, Justice Breyer, court enlargers aren’t the problem (excerpt):

If I believed that today’s judicial conservatives shared Breyer’s inclination toward compromise and restraint, I might agree with his warnings last weekagainst the movement to enlarge the Supreme Court.

Unfortunately, most right-wing judges are not who Breyer wants them to be, and the court on which he serves is not as apolitical as he wishes it were.

The Supreme Court faces a legitimacy crisis not because progressives are complaining but because of what they are complaining about: a reckless, right-wing, anti-democratic court majority, and a conservative court-packing campaign marked by the disgraceful Republican blockade against President Barack Obama’s nomination of Merrick Garland in 2016 and the unseemly rush to confirm Justice Amy Coney Barrett just before President Donald Trump’s defeat last November.

So I respectfully dissent from the skepticism Breyer expressed about court enlargement in a lecture at Harvard Law School last week precisely because I share his underlying principles.

The New York Times continues:

Activists who say a larger court would give Mr. Biden the chance to appoint a number of liberal justices may be disappointed by his commission. People familiar with its charge from the president said the group will avoid making any recommendations to Mr. Biden or lawmakers.

Instead, the panel of scholars, lawyers, political scientists and former judges will produce a research paper designed to be an authoritative analysis of the issue. The goal, the people said, is not to settle on an answer, but to provide Mr. Biden, members of Congress and the public an evaluation of the risks and benefits of making changes to the court.

[P]eople familiar with Mr. Biden’s selections for the commission said they expected some members to offer evidence promoting the benefits of making changes to the court, while others would emphasize the costs or consequences of altering the current method of selecting justices. Those discussions will be presented in the report, which is set to be finished in October.

In his order, Mr. Biden instructed the commission to hold public hearings on the issue and to accept testimony and submissions from other legal experts, organizations and members of the public who want to weigh in.

Among the questions that he wants answered: How should the strengths and weaknesses of proposals to expand the court be evaluated? Would expansion require other reforms, such as the creation of a panel system for sittings? How does the history of efforts to expand or contract the size of the court bear on the questions being debated?

Naturally, the “court packing” thief Senator Mitch McConnell is clutching his pearls and having a case of the vapors. From the always hysterical, white nationalist fascist Fox News: McConnell: Biden Supreme Court commission ‘direct assault on our nation’s independent judiciary’ (a textbook example of psychological projection):

McConnell released a statement calling Biden’s commission, which will only study topics including whether to add more seats to the nation’s highest court, a “direct assault on our nation’s independent judiciary.”

Sorry, “court packing” thief, you have already accomplished this. McConnell Says Denying Merrick Garland a SCOTUS Hearing Biggest Accomplishment of His Career. A thief proud of getting away with his crime against the Constitution.

Having another case of the vapors, the “court packing” thief added:

“Rational observers know well there is nothing about the structure or operation of the judicial branch that requires ‘study,’” McConnell said Friday.

“This faux-academic study of a nonexistent problem fits squarely within liberals’ years-long campaign to politicize the Court, intimidate its members, and subvert its independence,” wrote McConnell. “This is not some new, serious, or sober pivot away from Democrats’ political attacks on the Court.”

This bit of ridiculously stupid nonsense is refuted by numerous judges and scholars who have long been discussing, and demanding judicial reforms, including some appointed to this commission. Why does anyone take this hysterical fool seriously?