With the news that President Biden’s commission into Supreme Court reform has finished its first draft, questions abound as to what measures the administration may take. But perhaps more importantly, what actions can Congress and the Executive legally perform?
The president refuses to comment on the initial report until its final form, which is due in November, and White House Press Secretary Jen Psaki is likewise staying mum on all things SCOTUS. So what does the future hold for the highest court in the land? Are there any clues in the commission’s recommendations so far?
There is no one better placed to help us unravel these issues than Liberty Nation’s own legal affairs editor and constitutional lawyer, Scott D. Cosenza.
Mark Angelides: Tell me, Scott, what were your first impressions of this report? And as a man devoted to the Constitution, did it send any chills up your spine?
Scott D. Cosenza, Esq.: There would be chills if the presidential commission had real power. My first impression is that document, with some notable exceptions, is often a big complaint that Democrat nominated justices weren’t dominant on the Supreme Court, and that leftists were going to lose too many cases as a result.
MA: I think one of the biggest questions our readers want to know is whether this is really an honest effort to improve the performance and durability of the court, or is it a cudgel with which the Biden administration hopes to beat back challenges and drum up support for Democrats come 2022 and 2024?
SDC: Well, I’m sure that’s how the administration will use the report. Let’s remember there’s nothing independent about the commission, its membership, or its findings. The work is simply the product of a Biden administration effort to advance their political success.
MA: Let’s dig into the details a bit more. From my reading of the draft, the commission seems to be swaying away from the idea of court-packing; as in, they at least recognize that this would be a tit-for-tat measure. But they do state that it would be constitutional for Congress to do so … Is that about right?
SDC: Yes. I think everyone recognizes publicly that the Congress may add members of the Supreme Court, even those who caution most against doing so. Refreshingly, the draft does candidly discuss the likely downsides of adding justices, especially if several are added at once, and nominated by this president. They quoted one study, which claimed a modest projection of tit-for-tat expansion would yield a Court with about 30 justices in 50 years, and over 60 justices in 100 years.
MA: One of the most significant recommendations looks like a proposal on “revolving justices,” is this a viable plan? I guess I have two questions here, Scott. The first being, is this just court-packing by any other name, and second, is it in line with the Constitution?
SDC: Any proposal that changes the current composition of the court and how it resolves disputes is likely to been seen by many as court-packing. If recent decisions and appointments had gone the way powerful Democrat politicians and interest groups wanted, it’s doubtful we would see any of this. The various proposals about “revolving justices,” “Junior Justices,” etc., all seem to have one thing in common – they are not likely allowed by the Constitution. This means passing a constitutional amendment is the only way they would be implemented. This draft report does mention constitutional objections, but then downplays them.
MA: What other nuggets of fascination did you take from your reading of the report?
SDC: The report often refers to our “democracy,” but not our constitutional republic. Paramount in our system are the rights of the individual, the true minority, often whose sole protection comes from the Supreme Court. The Court and its rulings are often anti-democratic, as they are not supposed to have a basis in popular opinion whatsoever. These language choices say a great deal about the commission and its values, and none of it bodes well for the Founders’ vision of limited government and individual liberty.
MA: I’d like your analysis here, Scott. It seems to me that folks on the right see this whole endeavor as little more than an attempt by Democrats to swing the Supreme Court majority back in their favor. And perhaps that’s how folks on the left see it, too … but they just don’t say that out loud. From your reading, what do you make of it?
SDC: The entire endeavor was born out of a frustration Democrats have with not winning enough at the ballot box to control the high Court. There are a few important and relatively non-ideological issues the commission brings up. More’s the pity the burlesque surrounding their true intentions are likely to scuttle meaningful considerations of those issues.
MA: I’ll leave you with the final word on this, Scott. Do you think – based on this commission or any other Swamp rumblings – that we’ll see significant reforms to SCOTUS in the next few years, or will it end in partisan division and opportunities for fundraising?
SDC: Like beauty, “reform” is often in the eye of the beholder. It’s hard to separate my analysis from my wants and wishes here, because I think adding Justices would be so catastrophic for the Court and the country. As in all things, we can trust people to follow incentives and act in their own best interests. Hopefully the people see it in their interest to keep daily retail politics away from Supreme Court composition.