Biden orders study of Supreme Court Changes
By Ken Thomas and Jess Bravin
The Wall Street Journal
US President Joe Biden ordered a commission to study Supreme Court changes such as adding seats, an idea pushed by progressives in his party that faces strong opposition from congressional Republicans.
Mr Biden said during his campaign that he would create a bipartisan commission to study expanding the court or creating term limits for judges. Republicans have criticised what they say are proposals to “pack” the court by adding members, with the court holding a conservative 6-3 majority following Donald Trump’s presidency.
The 36-member commission will be charged with completing its findings within 180 days of its first public meeting and will preside over a fraught political moment for the future of the nation’s high court. The announcement came days after Stephen Breyer, the court’s oldest judge and most liberal member, warned that efforts to restructure the court could undermine its reputation as an apolitical body.
Advocates for expanding the court say that the conservative majority is out of sync with both public views and mainstream legal thinking and that increasing the number of judges would correct that. Critics say such moves would further politicise an institution that strives to define itself as separate from partisan agendas.
The White House said that Bob Bauer, a former White House counsel and top Biden campaign adviser, would co-chair the commission along with Yale law professor Cristina Rodriguez, a former Justice Department official in the Office of Legal Counsel.
The commission includes some of America’s best-known legal scholars, former federal judges and appellate lawyers who have argued before the court, along with leaders of advocacy groups.
Some of the members include Harvard law professors Laurence Tribe, a prominent liberal scholar who clerked at the Supreme Court for Potter Stewart, and Jack Goldsmith, a conservative who served in the George W. Bush Justice Department and clerked for judge Anthony Kennedy.
Other well-known members are retired judge Thomas Griffith, who was appointed by Mr Bush to the U.S. Court of Appeals for the District of Columbia Circuit, and Walter Dellinger, former acting solicitor general in the Clinton administration.
The White House said topics before the commission will include “the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
Democrats remain angry that Republicans, then controlling the Senate, refused after judge Antonin Scalia’s February 2016 death to consider President Barack Obama’s nominee for the Supreme Court, now-Attorney-General Merrick Garland. GOP leaders said then that a vacancy arising in an election year should be filled by the next president.
When, following Ruth Bader Ginsburg’s death in September, Senate Republicans confirmed Amy Coney Barrett a month before November’s presidential election, Democrats said they would consider significant actions if voters handed them the majority.
Mr Biden during his 2020 campaign resisted calls from within the Democratic Party to push for an expansion of the Supreme Court. He instead announced plans in October to form the commission if elected, saying the court system was “getting out of whack”. At the time, Mr Trump and Republicans accused Mr. Biden of preparing to pack the courts if he won the presidency and criticised him for declining to outline his stance on overhauling the courts. His proposal also received a tepid response from some liberal organisations that wanted him to expand the court if elected.
Congressional power over the Supreme Court is limited, but there is no dispute it can decide how many judges will serve on it. When it first met in 1790, the court had six judges; congress adjusted the number several times, most recently in 1869.
A Supreme Court that repeatedly stymied New Deal initiatives in the 1930s led Franklin Delano Roosevelt to propose legislation that would add one judge for each member over the age of 70, which would have provided him a majority on the court.
That proposal was widely criticised even by fellow Democrats and failed in congress, but the court switched its approach after Roosevelt’s agitation and began to recognise broader federal authority to regulate the national economy.
Chief Justice John Roberts, who has strived through his tenure to reduce the court’s political profile, often has spoken of his admiration for chief justice Charles Evans Hughes, who worked to defeat FDR’s plan to increase the court’s size.
The Wall Street Journal
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2 comments
Feel free to reply to any comment by clicking the "Reply" button.Not sure, but probably. This is almost certainly a sour grapes response to Barrett's appointment. The notion that the court's make-up is out of step with with public views and current legal thinking is a ridiculous reason for taking steps to alter the number of justices. As long as SCOTUS is a lifetime appointment, there will always be periods where the court doesn't mirror majority public thinking. The Dems are doing everything possible to ensure we never see another Republican president in office. Adding justices to "rebalance" the court in their favor would be quite the sweet deal for them.
coalburned
Level 8
Apr 12, 2021
2
It would just destroy whatever credibility the Court has left.
The SCOTUS is a conservative institution, by its very nature. There shouldn't be a single Progressive on it. They only corrupt it and make it less effective, even counterproductive. Which, given the importance of their role, is kind of a big deal.
There is, arguably, a place for "Progressives" in the culture; the Supreme Court ain't that place.
rway
Level 7
Apr 12, 2021
4
Can you explain your reasoning? The country is pretty evenly divided, why not have accurate representation? Only Conservatives should get to decide the rules? How is that fair?
Although there are no Progressives on the court. There are Far-Right, Center-Right, and Center-Left justices.
@Beachslim tell that to the one saying "There shouldn't be a single Progressive on it."
rway:
@JacksonNought the purpose of the Supreme Court is a conservative function, by it's very nature.
It doesn't matter how the population is divided, they aren't there to represent anybody.
They are there to represent the Constitution.
@rway they are there to determine if something is Constitutional or not. Both Conservatives and Progressive can do that, as long as they do not succumb to their ideologies over impartiality. If Conservatives were only on the court, we'd never overturn anti-miscegenation, and mixed-race couples could never marry. We'd have never allowed for marriage equality with Obergefell v. Hodges. Heck, a hard-line Conservative might have dismissed the civil rights movement, and black people would still be segregated. Conservatives trend towards saying "what is already in place is fine, no need to change it" whereas a Progressive would trend towards saying "the Constitution says 'all men are created equal' and that means black people are equal".
Why do we have 7 out of 9 justices as Catholic?
rway:
@JacksonNought Segregation was a "Democrat thing", just like slavery... first to the Plantation, and now to the State.
What "conservative" means in practice, depends on what they're trying to "conserve"; in this case, the protections of the Constitution.
The Constitutionality of a Law is determined by comparing it to the Constitution. If the Constitution supports it, it's legitimate.
If it doesn't, such as in the case of each of your examples... then it's not legitimate.
The Constitution is the yardstick... the "standard". It is neither "flexible", nor a "living document".
The conservative response to illegitimate law, is to fix the law; whether they "like" the law or not.
The progressive response, when they "like" the illegitimate law... is to "re-interpret" the yardstick; which simply makes the Constitution useless as an enduring standard.
@rway
Segregation was a "Democrat thing", just like slavery.
Yes, but was it a Progressive thing? Notice how you said Democrat, not Liberal or Progressive or Left-Wing. We are talking Conservative vs Progressive, not Republican vs Democrat. It is common knowledge that the parties had a "realignment" in the 1920s and 30s, and today's Democrats were yesteryear's Republicans. [history.house.gov] So, let's remove political party from the equation altogether, and speak in ideology instead. Was segregation a Conservative / Right-Wing thing, or a Progressive / Left-Wing thing?
If it doesn't, such as in the case of each of your examples... then it's not legitimate.
So you are saying anti-miscegenation laws were Constitutional? Segregation was Constitutional? Slavery was Constitutional? That's some pretty backwards way of thinking. Especially when the First Amendment guarantees Freedom of Religion, and most people defended segregation / slavery based on their personal religion (which was always Christianity).
It is neither "flexible", nor a "living document".
Then what is the point of the Amendment process? The Founders realized that there were scenarios they could not anticipate in the far-off future, which is why there is a process to add Amendments to update and clarify rights.
It's funny that people whine about a "living document" and "reinterpreting" when people are asking for basic human rights, but you never hear a peep out of those same people when they are presented with the original intent of the Second Amendment. Because, you know, if the Second Amendment wasn't re-interpreted and twisted, we wouldn't have the crazy gun country we live in today.
rway:
- Yes I did notice. But those are "Democrat" things, not "Progressive", and certainly not conservative as you were implying.
The "Big Switch" mythology is something Democrats tell themselves so they can sleep at night. It is true, they began reeling in black voters first with the "New Deal" and then with the "Great Society" disaster. And look at the black-American community now...
You are aware, I'm sure, that Republicans tried to get the Democrats to go along with civil rights legislation like a half-dozen times before the Democrats adopted their "New Plantation" strategy. - umm, no. What I said was the exact opposite of that.
- The Amendment process happens in the House among the People's representatives in the "light of day"... NOT by decree of as-few-as 4 robed-Yodas in a back-room somewhere.
Principles don't change "with the times".
"...shall not be infringed" is pretty unambiguous. Without the necessary re-interpreting and twisting... we would have no gun laws.
Things can't be "illegal", only "actions" can be illegal (in a just society.) The Founders realized that, and the victims of our nationalized "education" system simply don't get it.
@rway do you do yoga to be able to twist yourself into these knots to justify your narrative?
1 - You are switching to Democrat now, when we were talking about Progressive vs Conservative before. You said, "The SCOTUS is a conservative institution, by its very nature. There shouldn't be a single Progressive on it." And now you are saying "well Democrats did this..." Sorry, we aren't talking about them, we are talking about Progressives. Why even bring Democrats up? The question is, who defended slavery and fought against civil rights - was it Progressives or Conservatives? And no, the realignment is not mythology. Look at the whole Confederacy controversy today - it certainly isn't the Democrats crying about Confederate statues and flags being removed, whining "my heritage". In fact, the deniers of a realignment are the Right-Wingers who want to call out "Democrats were the KKK, Lincoln was a Republican" so they can sleep at night and ignore the absolute atrocities being committed by the Republican party.
2 - So you agree that things like anti-miscegenation and segregation and DOMA were unconstitutional? Ok, well those were all things most Conservatives defended. Progressives helped to strike them down, as Progressives recognized they were un-Constitutional. In your description, Conservatives wouldn't try to "twist" the Constitution to strike them down.
3 - "The Constitution is the yardstick... the 'standard'. It is neither 'flexible', nor a 'living document'." Yet you recognize the Amendment process, no? If the Constitution is the standard, and not "flexible" then there would be no need for Amendments - just recognize the current laws were unconstitutional and wrong, and move on. But no, we need Amendments to make sure people don't try and re-interpret it later on to try and reverse it because of some agenda. You may call that original intent, just poor interpretation... okay, sure. Well, look at the 3/5ths Compromise in Article 1, which had to be amended out in the 14th Amendment, so that Black people were counted as full people. That made an actual change to the Constitution, editing it because of a change in society. That was literally a case of principles changing with the times.
When you only include "shall not be infringed" you present it out of context. Same as the NRA removing one of the commas when they present the Second Amendment.
And just like with every right, there are limits. If you take it literally, arms doesn't say guns. Do you think it is un-Constitutional that you cannot own a nuclear weapon? Voting is a Constitutional right as well, yet Conservatives want to regulate it throw up more barriers to vote than to own weapons.
"Things can't be 'illegal', only 'actions' can be illegal" - owning something is considered an action here.
rway:
@JacksonNought yes... because you introduced those "Democrat" examples as conservative initiatives. You could characterize them as conservative... in that, the Democrats were trying to conserve their racist hegemony.
...but that has nothing to do with Constitutional conservatism; i.e., the topic at hand. Those policies were unconstitutional then, as they are now.
Again.... ... "What conservative means in practice, depends on what they're trying to conserve".
In matters of constitutionality... a conservative would be somebody intent on conserving the Constitution.
The Founders were, themselves, Progressives... in the context of what they were trying to accomplish. Modern-day conservatives are trying to put us back on that path; what was, at the time and in that context, a progressive path. There's your "big switch."
Conservatives are not simply blindly-devoted to the status quo, it depends on the status quo in question.
Roe v Wade has been "status quo" for almost a half-century, and does not get a huge amount of support from modern-day conservatives.
Because it's not legitimate Law under the constitution.
The 3/5 clause was included because Democrats wanted to use blacks' full-number so they would have more power in government to keep blacks enslaved; and, yes, that would make them the "conservatives" in that context. When they finally got full representation, it wasn't because any principle had "changed". It was because their oppressors were defeated.
"...shall not be infringed" is the action clause.
"the right of the people to keep and bear Arms", is what it's about.
The introductory clause was supposed to add clarification, not provide opportunity to violate the remaining clauses... they probably should have just left it out. Because, apparently, the more words you include the more people have to misunderstand; the more to "twist" into what they wish it said instead.
Yes, it is unconstitutional that you cannot own a nuclear weapon. "But, it seems like it should be...." is not a valid test for constitutionality.
You have no natural right to vote. Voting is currently treated, and quite hysterically defended, as a "right"; but... then again, so is homicide under Roe v Wade.
@rway I introduced Conservative examples, of Democrats-at-the-time (Conservatives) using the acceptance of slavery during the time of the Constitution as an example of "conserving American culture" by arguing against freeing the slaves, most of the time also using a Bible as their justification. Republicans-at-the-time (Progressives) saw society changing and realized they could no longer support slavery, and the Constitution needed to be amended. I never used the words Democrat or Republican before you. So, again, let's get rid of them and only talk Progressive vs Conservative.
rway:
@JacksonNought Yes, exactly. I think I clarified all that while you were typing.
That wasn't "American culture", as defined by the Constitution. It was "Southern culture" that they were trying to conserve. The Constitution made slavery illegal in America the day it was signed.
You didn't use the word "Democrat" when you introduced Democrat policies... agreed.
@rway
You didn't use the word "Democrat" when you introduced Democrat policies
Because we are talking Progressive vs Conservative. And they were Conservative policies.
rway:
@JacksonNought Yes, Conservative... for a Democrat slaveholder; not with regard to the Constitution.
@rway sorry, the facts speak for themselves. Progressives fight against social injustice - that means slavery, marriage inequality, stripping away of civil rights, etc. The Conservatives do not, and were the defenders of slavery. Continuing to use "Democrat" is just trying to pettifog the issue and paint a false narrative to win your argument.
rway:
@JacksonNought if you define "Progressive" as somebody who fights injustice... then your self-licking argument that "Progressives fight injustice" would be correct.
Unfortunately, there's more to it than that... as described extensively above.
@rway yes, that is what a Progressive is. Your definition of Conservative is "self-licking". I guess we will forever disagree on the facts regarding this.
rway:
@JacksonNought Progressivism is a push for change. It is contextually-specific... not a "type of person".
And, not all change is for the better.
@rway Conservatism is a push for keeping rules as-is, no matter how draconian or harmful they are.
rway:
@JacksonNought so, explain the Conservative opposition to the Roe v Wade "rule", that's been in place for decades...
and, the hysterical demand of "progressives" that it be kept sacred and untouchable.
A two-dimensional, cartoon-like dichotomy is just "us vs. them" bullshit. It is not useful to explain... anything.
I think, from now on... I should use qualifiers, like "Constitutional Conservative"; even when it's obvious in-context. Then again... anybody who didn't get it the first time, isn't going to get the difference anyway.
Oh well... you asked me to explain, and I did. You didn't promise to understand.
@rway well Conservatives think it was wrong to change laws to allow for abortion or mixed-race marriages or same-sex marriages, and so they effortless try to reverse those decisions back to how things were in 1776. They are also mostly Christian, and have a desire to make the country a Christian Theocracy, while at the same time hiding behind the First Amendment. That is my definition of a Conservative.
Now, you may disagree with my assessment. And I am sure I disagree with your definition of a Progressive. Like I said, we will disagree on the facts, and I doubt we can come to an understanding.
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