SCOTUS Commission: Short-term Payback Under the Guise of Long-term Reform

Posted by 19sc on July 20, 2021

On Tuesday, the Presidential Commission on the Supreme Court of the United States held its third meeting and 2nd round of hearings since being formed by President Joe Biden earlier this year. The meeting consisted of 6 panels of experts that commissioners questioned about various proposals for changes to the Court.  This one was much more partisan then the first two with progressive panelists making outrageous claims.  However, Harvard Professor Stephen Sachs summed up the commission well:

The public will see through efforts to recast court-packing as “court expansion,” jurisdiction-stripping as “jurisdiction channeling,” and so on. It will see through efforts to pursue short-term partisan payback under the guise of long-term reform. And because legitimacy is a two-way street, reforms that are not perceived by both sides as enhancing the courts’ legitimacy will never succeed in doing so.

A sample of those outrageous claims come from Harvard Professor Michael Klarman.  Klarman's testimony reads like a DNC intern's idea of a speech for the Chair.  After ten pages of political diatribe against the GOP that literally has nothing to do with the Supreme Court he writes: "What does any of this have to do with the Supreme Court and the question of whether it is in need of reform?"  While he continues his rant for nine more pages he eventually lays out his goal:

"The real question confronting Democrats should not be whether to expand the Court but when to do so."

Unsurprisingly, the Commissioners didn't direct as many questions to those providing a conservative-leaning perspective.

Witnesses providing a conservative perspective included Ilya Shapiro, John Malcolm, Curt Levey, Randy Barnett, and Stephen Sachs. 

Shapiro's remarks focussed on the Supreme Court confirmation process. Specifically, his testimony discussed the politicization of the process:

In the end, all of this “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem we face, and that the Supreme Court faces, is the politicization not of the process but of the product. The only way judicial confirmations will be detoxified, and the only way we reverse the trend whereby people increasingly see judges as “Trump judges” and “Obama judges,” is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states, while forcing Congress to legislate on the remaining truly national issues rather than letting bureaucratic rules govern us.

Both Malcolm and Levey were tasked with giving a more broad overview of their perspective on whether the Supreme Court should be reformed. Both pushed back against the idea that the Court has strictly become a partisan body with predictable outcomes:

While a grab bag of ideas were proposed at Tuesday's meeting, the most prominent proposal being considered by the Commission is whether "packing" the Supreme Court should be pursued. As Barnett's testimony pointed out, a 1937 Senate Judiciary Committee's report on FDR's court packing plan says it all:

It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretations of the Constitution, a proposal that violates every sacred tradition of American democracy.

Under the form of the Constitution it seeks to do that which is unconstitutional.

Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is—an interpretation to be changed with each change of administration.

It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

The Commission should reject the radical proposals like court packing being proposed by the mostly left-leaning witnesses being called to testify and resist the pressure by the left to produce a report that provides cover for Democrats to radically change the Supreme Court.  The reality is the Court is not the problem.  As Professor Sachs concludes:

The Court is not getting in Congress’s way; the main barrier to major legislation, whether on voting rights or climate or health care or anything else, is cobbling together 50 votes in the Senate, not five votes on the Supreme Court. The most controversial topic that might arise in the next Term is whether to revisit Roe v. Wade; whatever one’s views, doing so would allow democratic majorities to make their own decisions, not prevent them. And the public’s approval of the Supreme Court, at least as of last year’s Gallup poll, was higher than it has been for most of the last decade.

Court packing Supreme Court SCOTUS Presidential Commission on the Supreme Court of the United States

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