Yesterday, President Biden’s commission in the Supreme Court released “negotiation materials,” including court-packing and a range of issues, including the term of judges of the Supreme Court. These are preliminary reports and do not include actual recommendations. But they also provide a helpful window into the views of commission members.
As I and others made predictions based on the composition of such commissions, reports are generally skeptical about court-packing, but favorable to the notion of time limits. If, as some conservatives feared, Biden wanted the commission to approve court-packing so as to give political impetus to the idea, he would not have included so many court-packing suspects among the members. He would instead pack the commission with Packer!
The court-packing report provides a detailed overview of the arguments for and against the concept and offers various suggestions for enhancing or changing the structure of the court. Although it does point out that some commission members view sympathetic, influential voices towards packing as a way to offset what the Supreme Court sees as an illegal Republican manipulation of the nomination process is a form of skepticism.
The report emphasizes that many of the commissioners who strongly dislike the current structure of the court believe that court-packing is more likely to be harmed than “increasing the legitimacy of the Supreme Court … democratic values.” Given my own opposition to court-packing, I strongly agree.
I am far from the only observer to interpret the report in this way. Both liberal and conservative commentators share the same view, and skeptical views about the report’s “court expansion” have already drawn the ire of court-packing supporters. To be fair, at least one member of the commission – the Volok conspiracy co-blogger Will Bowd – has criticized the draft for not being negative enough about court-packing. I would also like a stronger condemnation of the idea. But a more moderate approach to reporting is still sufficient to prevent any further dynamics in favor of court-packing, and to imply that even many progressive legal scholars believe that such proposals are dangerously misguided.
As I mentioned recently, the court’s declining popularity over the past few months creates a potential window of opportunity for court-packing advocates (although I also stress that it won’t be easy for Democrats to take advantage of it, and it’s not clear what they want). The commission’s initial report does more than throw cold water into this potential fire.
In contrast, the draft report on deadlines is much more positive. It emphasizes broad bilateral support for the concept among academics, lawyers and others, and the 18-year deadline can solve a variety of problems. The report rightly emphasizes that this proposal enjoys wider support than any other considered by the Commission.
I also support the term limit, so I welcome the explicit approval of the concept of the report. The report indicates that the commissioners are divided on the question of whether the term limit needs to be amended by the constitution or whether it can be enacted by the constitution. In my view, an amendment is indeed necessary, and allowing Congress to do so by law would set a very dangerous precedent. The term limit report also includes insightful discussions on various organizational issues that must be addressed in order to implement the time limit, including how to manage transfers in a time limit manner and how to prevent potential conflicts of interest due to judges’ desire to follow up after leaving court. Career opportunities.
Although it has attracted less attention than the court – the latter idea, in my view, is a basic plan to neutralize the court as court-packing.
The report provides a balanced discussion of the long-running debate over the limits of Congress’ power to open courts of jurisdiction in a variety of cases. Notably, members of the commission are most skeptical of more radical jurisprudence-snatching proposals, which would deny the jurisdiction of certain types of cases in all types of federal courts, as those cases are simply referred to a court rather than another. They are more skeptical about proposals to deny jurisdiction to state courts, as well as federal courts.
Regarding legal overrides, the report makes me feel more suspicious than jurisdiction-snatching. This suggests that any such proposal could be unconstitutional, and – if enacted – would likely be invalidated by the courts, creating a constitutional crisis.
Christopher John Sprigman, Professor of NYU Law Interprets the report more favorably in favor of separation of jurisdiction and legal override Than me Readers have to judge for themselves, which of us is right. Perhaps we are both influenced by our own priorities (he supports these ideas, while I do not). But I think, at the very least, it is difficult to argue that the report is in favor of a more radical notion along these lines. It repeatedly stressed that they could be unconstitutional and lead to dangerous conflicts between the judiciary and Congress.
I will just add that it is better for progressives to look at the concept of a sympathetic U.S. version of the same Canadian style as the one actually used. Judicial review aimed at religious and linguistic minorities is the most important call to protect against discriminatory Quebec law. Perhaps our state and federal legislators are more enlightened than their Canadian counterparts. But progressives wanting to take comfort in such thinking should consider whether they feel that way about the Republican-controlled Congress and the state government.
Finally, the commission released a report focusing on court rules and various other procedural issues for case selection. This includes issues such as the “shadow docket” reform, the proposal for an ethical code for Supreme Court justices, and the use of cameras in court. I will leave it up to the commenters more efficiently on the relevant subject. But, at least in my initial assessment, this report does not support any fundamental or serious problematic reforms. I agree with his apparent advice that the camera will not be a problem in court, and that the court must continue the recently established practice of livestreaming oral arguments.
All four reports are valuable resources for scholars and others interested in their subject matter, as they do an excellent job of summarizing the arguments for and against literary surveys and various reform proposals on these topics. This will please experts and legal commentators, but no one expected the commission to give an enthusiastic support for radical reform.
I hope that the term limit report will help create momentum for this concept, although it will not be easy to amend the necessary constitution. Other reports are a valuable resource for experts, but will probably have no more than a very small impact on public debate.
It is possible that the Commission’s final report (which may include actual recommendations for reform) will take a different position on this preliminary document. At the moment, I doubt it will. But only time will tell!