In 2014, Justice Thomas Griffith wrote an opinion in Halbig v. Burwell It could have destroyed Obamacare’s insurance markets in more than 30 states and potentially stripped the health coverage of millions of Americans. Griffith’s court ultimately overturned its ruling against Obamacare, and the Supreme Court rejected Griffith’s reasoning in King v. Burwell (2015) – but not before Halbig The move plunged the Obama administration, healthcare advocates and patients into a year of terror for Obamacare to be gutted.
President Joe Biden announced on Friday that he would sign an executive order creating a “Presidential Commission of the Supreme Court of the United States. Griffith – who retired from the federal bench in 2020, allowing former President Trump to choose his successor – is one of many prominent conservatives on this commission, which the White House named Biden for ” provide an analysis of the main arguments of the contemporary public. debate for and against reform of the Supreme Court. “
Yet while the perpetrator of one of the most significant attacks on Obamacare in the past decade is on Biden’s commission, none of the main academic supporters of Supreme Court reform have been named ( the overwhelming majority of the three dozen members of the commission are law professors or scientists).
Biden initially said in October that he would convene a commission of eminent academics to study possible Supreme Court reforms. At the time, Biden was torn between liberal activists who were enraged by Senate Republicans’ efforts to ensure the GOP could control the Supreme Court, and Republican critics who accused Democrats of wanting to add seats to the Supreme Court. the Supreme Court to overturn these efforts. by the GOP.
Rather than take a stand on whether to add seats on the Supreme Court, Biden ultimately dismissed the issue until the election was over with his promise to appoint a commission.
Now he has appointed such a commission and, measured only by his intellectual firepower, the names of the commission are impressive. They include some of the country’s foremost legal scholars, such as Yale Law School Dean Heather Gerken and Laurence Tribe of Harvard.
But the commission does not include law professors Daniel Epps and Ganesh Sitaraman, authors of a very influential proposal to expand the Supreme Court to 15 judges and choose the main members of the court in a bipartisan process that aims to reduce the courtyard. ideological. And that doesn’t include Aaron Belkin, professor of political science and head of Take Back the Court, a pro-reform organization. In choosing the members of this commission, the White House appears to have prioritized bipartisanship and star power within the law academy rather than picking people who have actually spent significant time defending court reforms. supreme.
(I have contacted the White House for comment on several of the concerns raised in this article, but have not received a response from them as of this writing. We will update this article to include the White House comment if they respond.)
When the White House released the list of committee members on Friday, it was quickly praised by members of the Conservative Federalist Society. Evan Bernick, a libertarian law professor at Georgetown, praised the commission as a “powerful lineup of scholars.” Stephen Sachs, a law professor at Duke who won the Federalist Society’s Joseph Story Award in 2020, called the commission “a surprisingly balanced list. “
Ilya Somin, professor of libertarian law at George Mason University, wrote shortly after the commission’s composition was announced that “the commission’s composition is also bad news for proponents of the impeachment before the commission. the courts, who may have hoped she would produce a report endorsing the idea. “
So if the White House’s goal was to allay Conservative concerns that President Biden might try to diminish the Republican Party’s influence over the judiciary, this commission appears to have achieved that goal.
How we got to this point
Not so long ago, the idea of adding more seats to the Supreme Court in order to change its partisan makeup was seen as very radical. President Franklin Roosevelt offered to do so in 1937 in order to neutralize a court that frequently canceled New Deal programs on spurious legal grounds, but his proposal was unpopular and ultimately went nowhere.
Yet several crucial events have occurred in recent years that have convinced many Democrats that federal justice is unfairly opposed to them. In 2016, following the death of Judge Antonin Scalia in February of that year, Senate Republicans even refused to give a confirmation hearing to President Obama’s Supreme Court nominee, current Attorney General Merrick Garland.
At the time, Republicans claimed it was inappropriate to confirm a Supreme Court candidate in a presidential election year.
But then Judge Ruth Bader Ginsburg passed away in September 2020 and Republicans immediately abandoned the position they had invented to justify Garland’s appointment. Trump’s candidate, Judge Amy Coney Barrett, was confirmed just eight days before the 2020 election, which kicked Trump out of office.
In the interval between Garland’s unsuccessful appointment and Barrett’s successful one, Democrats have suffered two other significant traumas. The first is that Trump became president, despite receiving nearly 3 million votes less than Democratic candidate Hillary Clinton. Republicans also controlled the Senate for the duration of Trump’s presidency – but they only controlled the Senate through misallocation. The Democratic “minority” in the Senate represented millions more Americans than the Republican “majority” during Trump’s presidency.
Indeed, the three people appointed by Trump to the Supreme Court were appointed by a president who lost the popular vote and confirmed by a bloc of senators representing less than half of the country.
The second trauma was the confirmation of Judge Brett Kavanaugh, who was credibly accused of attempting to rape Dr Christine Blasey Ford while Kavanaugh and Ford were both in high school. Kavanaugh responded to the allegations with an angry rant at the Senate Judiciary Committee, in which he appeared to threaten retaliation against Democrats for repeating the allegations against him – “what’s going on,” Kavanaugh told the committee. .
All of this contributed to a feeling among Democrats that the court had grown too partisan and led many leading Democrats to conclude that radical action was needed to prevent a GOP-led Supreme Court from dismantling voting rights. and to entrench republican power in a different way.
Yet when candidate Biden was asked if he would support sweeping reforms such as adding seats on the Supreme Court, he initially said he opposed those reforms. After Ginsburg’s death, he took a more agnostic stance, claiming that while he “was not a fan of triumph,” his approach to the matter would depend on how Barrett’s confirmatory fight unfolded.
Now that Barrett has been confirmed, however, Biden appears to be signaling to his new commission that significant Supreme Court reforms will not be on the table.
Why a Milquetoast Supreme Court commission matters
Going to court is not something anyone should do lightly. If Democrats add seats on the Supreme Court in order to shift its partisan balance, the result is unlikely to be widespread acceptance of the newly liberal court’s rulings. It would be massive resistance from the Republicans.
As Justice Stephen Breyer recently warned during a lecture at Harvard Law School, “structural change [of the Court] motivated by the perception of political influence ”will erode confidence in the decisions of the Court.
Yet while Breyer is right to warn that significant Supreme Court reforms have the potential to undermine the legitimacy of the court, the mere threat of court action can serve an important function. If judges believe President Biden can send them six new colleagues if the court dismantles what’s left of the voting rights law, then those judges may be less likely to dismantle the voting rights law.
A healthy fear of a Democratic majority could lead the Supreme Court to become less partisan.
But Biden’s new commission sends the opposite message. With so many prominent members of the Federalist Society praising the commission from the start, it is clear that the Conservatives do not feel threatened by this commission. And the judges themselves are just as able to look at the list of names chosen by Biden and find that this commission is unlikely to support significant reforms.