Biden Creates SCOTUS Commission
It’s not unlike what Republicans once proposed
On the morning of April 9, 2021, President Joe Biden announced the creation of a commission to study the US Supreme Court, and report its analysis of possible reforms. On its face, conservatives everywhere are lit with fear and anxiety that this will lead to an expansion of the Court, and unparalleled concentration of power in the federal government.
History and context would be good to consider here:
The Court and its 13 circuits are created by an act of Congress alone, not presidential fiat. The Democrats simply don’t have enough votes in the House or the Senate to radically alter the Court.
Republicans have been complaining about the Supreme Court, and various lower courts for decades. And only one year ago, they were talking about changing the size of the ninth and other circuits for the sake of appointing new and more conservative judges. The House issued a GOP-authored report suggesting over 100 reforms.
The Supreme Court of the United States arguably needs reform. Since it’s creation, the court has become the most powerful government body perhaps in the world, at least among functioning democracies. And yet it’s not elected at all. Expansion of the Court from nine to a higher number is only one of many considerations. Exploring the practicality and necessity of changing things like retirement age, term limits, requirements, etc. may not be a bad thing.
Biden’s order specifically asks the commission to study the issue, but not make a list of actual recommendations. It also assembles 36 diverse voices, including conservatives and liberals, professors, lawyers, judges, and prosecutors. This is unlikely to be much more than political window dressing unless the Congress takes further action. So it doesn’t warrant an over-reaction from our side anyway.
I personally oppose expanding the size of the court myself (so do many Liberals), but I am interested in the idea of requiring an age of retirement or term limit of some kind, and raising the threshold of confirmation back up to 60 Senate votes. Again, so do many liberals.
Suffice it to say, the sheer panic and raw hysterics spreading over the conservative world today is probably unfounded, and perhaps a bit ironic. We can’t entertain the idea on the Right of reforming the branches of government without the Left doing the same. We can’t logically criticize them for wanting to repair the systems and levers of government while desiring the same from our side.
Our nation’s Framers knew that pure democracy was dangerous, so they created three separate branches for a reason. Over the last 234 years those branches have hemmed and hawed in their part of that balance. Any reform that comes out of this process, or a future one, should get Congress more involved. The legislative branch has too often ceded control for the sake of expediency. But this Faustian bargain has created the very problem Congress (and we) now complain about. The only ones who can change it are we the people, through Congress.
As always, power corrupts, and reform is a necessary duty of a self-governed people. Biden‘s creation of this SCOTUS commission can be a good thing. Instead of always fighting what comes out of the other side, we should start eating the meat and spitting out the bones, intelligently engaging the process.
Don’t reject or demonize Biden‘s SCOTUS commission; embrace it, push for reasonable reforms, and get good people elected to the Congress to enact them. Make it our idea. Make it our reform.
That’s how a civilized government is meant to operate, and how it best performs. And that’s how conservatives used to be.
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"This is unlikely to be much more than political window dressing unless the Congress takes further action. So it doesn’t warrant an over-reaction from our side anyway."
Thank you. THANK YOU. THANK YOU! for having a perspective based in reality. I spent too much time this week explaining to conservatives, "No. Biden DOES NOT have the power to unilaterally rewrite the Second Amendment. He has to jump through hoops A through Z to get anything meaningful done." Glad to see some folks embracing a reality-based perspective instead of letting speculation ruin their days.
As for reforms, I'm a fan of fixed terms (on the order of a decade or more) for SCOTUS justices, so that we're not playing a ghoulish game waiting for someone to die to update the composition of the Court, but we know in advance how many appointments each President will get to make.
https://fixthecourt.com/fix/term-limits/
Court packing is wrong no matter who does it. I do agree with one judicial expert, Jonathan Turley I think, who wrote that the Supreme Court should have more members so that filling each vacancy would not devolve into a war. Compromise is probably impossible but it should be easy to add four members with two appointed by the sitting President and two more by opposition Senators. I'm sure some sort of legislative maneuvering would be required to effect a one-time compromise.