June 24, 2021

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Biden’s new Supreme Court commission is a win for the Federalist Society – Vox.com

6 min read

In 2014, Judge Thomas Griffith authored an opinion in Halbig v. Burwell that could have wrecked Obamacare’s insurance markets in over 30 states and potentially stripped health coverage from millions of Americans. Griffith’s court eventually vacated his ruling against Obamacare, and the Supreme Court rejected Griffith’s reasoning in King v. Burwell (2015) — but not before the Halbig decision plunged the Obama administration, health care advocates, and patients into a year of terror that Obamacare would be gutted.

On Friday, President Joe Biden announced that he would sign an executive order creating a “Presidential Commission on the Supreme Court of the United States.” Griffith — who retired from the federal bench in 2020, allowing former President Trump to choose his successor — is one of several prominent conservatives on this commission, which the White House says Biden appointed to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”

Yet, while the author of one of the most significant attacks on Obamacare in the last decade is on Biden’s commission, none of the leading academic proponents of Supreme Court reform were appointed (the overwhelming majority of the commission’s three dozen members are law professors or political scientists).

Biden initially said in October he would convene a commission of leading academics to study possible reforms to the Supreme Court. At the time, Biden was torn between liberal activists who were enraged by Senate Republicans’ efforts to ensure that the GOP could control the Supreme Court, and Republican critics who accused Democrats of wanting to add seats to the Supreme Court in order to undo those efforts by the GOP.

Rather than take a position on whether to add seats to the Supreme Court, Biden ultimately punted the question until after the election with his promise to appoint a commission.

Now he has appointed such a commission and, measured solely by its intellectual firepower, the names on the commission are impressive. They include some of the nations’ most prominent legal academics, such as Yale Law School Dean Heather Gerken and Harvard’s Laurence Tribe.

But the commission does not include law professors Daniel Epps and Ganesh Sitaraman, authors of a highly influential proposal to expand the Supreme Court to 15 justices and have the key members of the Court be chosen in a bipartisan process that is intended to make the Court less ideological. And it does not include Aaron Belkin, a political science professor and leader of Take Back the Court, a pro-reform organization. In choosing the members of this commission, the White House appears to have prioritized bipartisanship and star power within the legal academy over choosing people who have actually spent a meaningful amount of time advocating for Supreme Court reforms.

(I reached out to the White House for comment about several of the concerns raised in this piece, but have not heard back from them as of this writing. We will update this piece to include the White House’s comment if they respond.)

When the White House released the list of commission members on Friday, it swiftly won praise — from members of the conservative Federalist Society. Evan Bernick, a right-libertarian law professor at Georgetown, praised the commission as a “powerhouse lineup of scholars.” Stephen Sachs, a Duke Law professor who won the Federalist Society’s Joseph Story Award in 2020, called the commission “an astonishingly well-balanced list.”

Ilya Somin, a libertarian law professor at George Mason University, wrote shortly after the commission’s membership was announced that “the composition of the Commission is also bad news for advocates of court-packing, who may have hoped that it will produce a report endorsing the idea.”

So, if the White House’s goal was to allay concerns among conservatives that President Biden might try to diminish the Republican Party’s influence over the judiciary, this commission appears to have accomplished that goal.

How we got to this point

Not that long ago, the idea of adding additional seats to the Supreme Court in order to change its partisan makeup was considered very radical. President Franklin Roosevelt proposed doing so in 1937 in order to neutralize a Court that frequently struck down New Deal programs on spurious legal grounds, but his proposal was unpopular and ultimately went nowhere.

Yet several crucial events happened in recent years that convinced many Democrats that the federal judiciary is unfairly stacked against them. In 2016, after Justice Antonin Scalia’s death in February of that year, Senate Republicans refused to even give a confirmation hearing to President Obama’s nominee to the Supreme Court, now-Attorney General Merrick Garland.

At the time, Republicans claimed that it was inappropriate to confirm a Supreme Court nominee in a presidential election year.

But then Justice Ruth Bader Ginsburg died in September of 2020, and Republicans immediately abandoned the position that they invented in order to justify scuttling Garland’s nomination. Trump’s nominee, Justice Amy Coney Barrett, was confirmed just eight days before the 2020 election, which threw Trump out of office.

In the interim between Garland’s unsuccessful nomination and Barrett’s successful one, Democrats endured two other significant traumas. The first was that Trump became president, despite receiving nearly 3 million fewer votes than Democratic nominee Hillary Clinton. Republicans also controlled the Senate for the entirety of Trump’s presidency — but they only controlled the Senate thanks to malapportionment. The Democratic “minority” in the Senate represented millions more Americans than the Republican “majority” during Trump’s presidency.

Indeed, all three of Trump’s Supreme Court appointees were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.

The second trauma was the confirmation of Justice Brett Kavanaugh, who was credibly accused of attempting to rape Dr. Christine Blasey Ford while Kavanaugh and Ford were both in high school. Kavanaugh responded to these allegations with an angry rant before the Senate Judiciary Committee, in which he seemed to threaten retaliation against Democrats for repeating the allegations against him — “what goes around comes around,” Kavanaugh told the committee.

All of this contributed to a sense among Democrats that the Court has become too partisan, and led many prominent Democrats to conclude that radical action was necessary to prevent a GOP-led Supreme Court from dismantling voting rights and otherwise entrenching Republican power.

Yet, when candidate Biden was asked about whether he’d support radical reforms such as adding seats to the Supreme Court, he initially said he opposed these reforms. After Ginsburg’s death, he took a more agnostic stance, saying that, while he’s “not been a fan of court-packing,” his approach to the issue would depend on how the Barrett confirmation fight played out.

Now that Barrett’s been confirmed, however, Biden appears to be signaling with his new commission that significant reforms to the Supreme Court will not be on the table.

Why a milquetoast Supreme Court commission matters

Court-packing is not something that anyone should do lightly. If Democrats did add seats to the Supreme Court in order to change its partisan balance, the result most likely would not be widespread acceptance of the newly liberal Court’s decisions. It would be massive resistance from Republicans.

As Justice Stephen Breyer recently warned during a lecture at Harvard Law School, “structural alteration [of the Court] motivated by the perception of political influence” will erode trust in the Court’s decisions.

Yet, while Breyer is correct to warn that significant reforms to the Supreme Court are likely to undermine the Court’s legitimacy, the mere threat of court-packing can serve an important function. If the justices believe that President Biden may send them six new colleagues if the Court dismantles what remains of the Voting Rights Act, then those justices may be less likely to dismantle the Voting Rights Act.

A healthy fear of a Democratic majority could lead the Supreme Court to become less partisan.

But Biden’s new commission sends the opposite message. With so many prominent members of the Federalist Society praising the commission right out the gate, it’s clear that conservatives do not feel threatened by this commission. And the justices themselves are just as capable of looking at the list of names that Biden picked and seeing that this commission is unlikely to support significant reforms.

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