April 19, 2021
Last year, prominent Democrats attempted to stop the confirmation of Amy Coney Barrett to the Supreme Court by threatening to pack the court in retaliation to her nomination. Sen. Chuck Schumer, D-N.Y., told his colleagues that "nothing is off the table next year." President Joe Biden made good on that promise with the creation of a 36-member commission to "reform" the court.
The only thing Democrats truly think needs to be reformed is the number of liberal justices on the court. That’s why the options the president wants his hand-picked Supreme Court czars to map out include packing the court with more members and setting term limits for justices.
Radical as it is, even that plan wasn’t enough for members of the president’s own party in Congress. They are now pushing legislation to add four seats to the Supreme Court immediately.
The commission was already more than a little problematic. It is heavily weighted toward academia and away from people who actually practice law. Of the 36 commissioners, all but a few are full-time law professors. One of the exceptions is the former head of the liberal American Constitution Society. No one on the commission is a historian. There are basically no experts in anything but constitutional law, which is only a small part of what the Supreme Court does - for example, the court just issued a huge ruling on copyright law in the case Google v. Oracle.
Liberals were upset at how the Senate has exercised the constitutional responsibility to advise on and consent to judicial appointments. They were furious that President Trump appointed a substantial number judges to federal courts. And they were livid that Justice Ruth Bader Ginsburg chose not to retire during the Obama administration.
Two of these complaints have nothing to do with the court; they have to do with the Senate. When Senate Democrats decided to "resist" Trump by blocking routine presidential appointments, Republicans chose to use the limited time available to prioritize judicial nominees.
We built upon the rules set by Democratic leader Harry Reid and successfully confirmed 234 judges in four years. President Biden and Senate Democrats can now follow those same rules to fill judicial vacancies as they occur. No commission is needed.
The third complaint, that justices serve lifetime appointments, is a feature of the federal judiciary, not a bug. The Constitution established lifetime tenure for federal judges. Until very recently, no one ever seriously proposed working around the Constitution to except Supreme Court justices from that rule.
I disagreed with some of Justice Ginsburg’s opinions over the years, but I never questioned whether she had earned the right to decide for herself how and when she left the court. If Biden wants to hasten the departure of a sitting justice, he can start sending them brochures about how nice it would be to retire to the Ozarks with me. Anything more could set a dangerous precedent that undermines Americans’ confidence in the judiciary.
An executive branch commission that investigates and analyzes the work of the Supreme Court challenges the balance of the Constitution. A presidentially-appointed commission that has hearings to evaluate and reports on how the Supreme Court is doing its job is a bad idea.
Even Justice Stephen Breyer, number one on the left’s retirement wish list, said in a recent speech that the court’s authority depends on "a trust that the court is guided by legal principle, not politics." He warned, "Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust."
The number of justices is not fixed in the Constitution, but it has been set at nine by statute since 1869. President Franklin Roosevelt, in response to a series of rulings undercutting his New Deal legislation, proposed packing the court with six new justices, bringing the total to 15.
FDR has been roundly criticized for attempting to use brute political force to seize control of the Supreme Court. Justice Ginsburg herself said, "I think it was a bad idea when President Franklin Roosevelt tried to pack the court." She added, "Nine seems to be a good number. It’s been that way for a long time." If every new administration decides it can just pack the court, before long we might end up with 36 justices. The same size as the commission!
I’ve seen some Democrats say that the commission is just studying the ideas. But they know full well that the threat of massive changes may be enough to influence the courts.
That’s what happened after FDR floated his plan. The court famously relented on New Deal legislation in the case West Coast Hotel Co. v. Parrish, a development colloquially referred to as the "switch in time that saved nine."
Democrats hold the White House and have a majority, barely, in Congress. That puts them in a strong position to negotiate their legislative priorities. But they need to be very careful when they start taking wrecking balls to vital American institutions for short-term partisan gain.