The new presidential commission on Supreme Court reform, which met for the first time Wednesday, has many eminent scholars on it — from the dean of Yale Law School, Heather Gerken, on the liberal side, to Harvard Law School’s Jack Goldsmith, on the conservative — but that’s about the only good thing most people are saying about it. “Biden’s Supreme Court reform commission won’t fix anything,” grouses Vox. Meanwhile, Sen. Ben Sasse (R.-Neb.) has said that the report it’s expected to produce in six months is destined to become a “taxpayer funded door stopper.”
The 36-member commission, fashioned as “bipartisan” and including a sizable number of conservatives, is tasked with determining whether the various reforms that have been proposed for the court, from court-packing (that is, adding justices) to jurisdiction stripping (taking away certain kinds of cases) to term limits for justices, would be constitutionally permissible and whether any or all would be desirable as a matter of policy.
Under our constitutional scheme, the ultimate decision over whether and how to reform the Supreme Court rests with Congress. So one question to ask is why Congress couldn’t simply have called these highly credentialed scholars and attorneys as expert witnesses at congressional hearings as the relevant committees consider the matter directly? The cynical answer, of course, is that establishing a presidential commission is a way of usurping congressional authority — and neutering reform. By convening a panel of individuals unlikely to recommend significant changes, President Biden could be attempting to remove from serious consideration more aggressive reform proposals. After all, he has been frank that he is “not a fan” of court-packing.
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