In 2014, Judge Thomas Griffith wrote an opinion 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 eventually vacated its verdict against Obamacare, and the Supreme Court rejected Griffith’s reasoning in King v. Burwell (2015) – but not before the Half the decision plunged the Obama administration, health care advocates and patients into a year of terror that would kill Obamacare.
President Joe Biden announced on Friday that he would sign an executive order requiring a “Presidential Commission of the Supreme Court of the United States. Griffith – who retired from the Federal Reserve in 2020, allowing former President Trump to choose his successor – is one of several prominent Conservatives in this commission, who, according to the White House, have appointed Biden to provide an analysis of the main arguments in the contemporary public. debate for and against the reform of the Supreme Court. ”
Although the author of the most important attacks on Obamacare over the past decade has been on Biden’s commission, none of the leading academic proponents of Supreme Court reform have been appointed (the vast majority of the commission’s three dozen members are law professors or political scientists). .
Biden initially said in October he would convene a commission of leading academics to study possible reforms at the Supreme Court. At the time, Biden was torn between liberal activists who were furious about 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 to undo the efforts. by the IDP.
Instead of taking a position on whether he wants to add seats to the Supreme Court, Biden finally expressed the question until after the election with his promise to appoint a commission.
Now he has appointed such a commission and the names in the commission are impressive, measured only by the intellectual firepower. These include a number of the country’s leading law academics, such as Dean Heather Gerken, Yale Law School, 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 have the key members of the court elected in a dual process that the court wants less. make. ideological. And that does not include Aaron Belkin, a professor of political science and leader of Take Back the Court, a pro-reform organization. In electing the members of this commission, it appears that the White House put bipartisanship and stellar power in the law academy ahead of the selection of people who spent a significant amount of time reforming the Supreme Court.
I have reached out to the White House for comment on several of the concerns raised in this piece, but have not heard of this at the time of writing. We will update this piece to include the White House comment as they respond. )
When the White House announced the list of commissioners on Friday, it quickly received praise – from members of the Conservative Federalist Association. Evan Bernick, a law-libertarian law professor at Georgetown, praised the commission as a ‘force formation of scholars’. Stephen Sachs, a professor of ducal law who won the Federalist Society’s Joseph Story Award in 2020, calls the commission ‘an amazingly well-balanced list. ”
Ilya Somin, a libertarian law professor at George Mason University, wrote shortly after the commission’s membership was announced that ‘the composition of the commission is also bad news for court packaging lawyers, who may have hoped it would produce a report. in which the idea. ”
Thus, if the purpose of the White House was to allay the concerns among conservatives that President Biden would seek to reduce the Republican Party’s influence on the judiciary, it would appear that this commission has achieved that goal.
How we got to this point
Not so long ago, the idea of adding additional seats to the Supreme Court to change its partisan composition was considered very radical. President Franklin Roosevelt proposed doing so in 1937 to neutralize a court that regularly abolished New Deal programs on illegal legal grounds, but his proposal was unpopular and ended up going nowhere.
Yet over the past few years, many important events have taken place that have convinced many Democrats that the federal judiciary has been unfairly stacked against them. In 2016, following the death of Justice Antonin Scalia in February of the same year, Senate Republicans refused to even give a confirmation hearing to President Obama’s nominee in the Supreme Court, now Attorney General Merrick Garland.
At the time, Republicans argued that it was inappropriate to confirm a nominee in the Supreme Court in a presidential election year.
But then Judge Ruth Bader Ginsburg died in September 2020 and Republicans immediately relinquished the position they had devised to justify Garland’s nomination. Trump’s nominee, Judge Amy Coney Barrett, was confirmed just eight days before the 2020 election, which ousted Trump.
In the meantime, between the successful nomination of Garland and the successful Barrett, the Democrats have endured two more important traumas. The first was that Trump became president, despite receiving nearly 3 million fewer votes than Democratic nominee Hillary Clinton. Republicans also controlled the Senate for the entire presidency of Trump – but they controlled the Senate only through divisions. The Democratic “minority” in the Senate represented millions more Americans than the Republican “majority” during Trump’s presidency.
All three of Trump’s Supreme Court nominees were indeed nominated by a president who lost the general vote and was confirmed by a senatorial bloc representing less than half of the country.
The second trauma was the confirmation of justice Brett Kavanaugh, who is credibly accused of the attempt to kill dr. To rape Christine Blasey Ford while Kavanaugh and Ford were both in high school. Kavanaugh responded to the allegations with a furious outburst before the Senate Judiciary Committee, in which he apparently threatened retaliation against the Democrats for repeating the allegations against him – “what goes around comes around,” Kavanaugh told the committee .
All of this contributed to a feeling among Democrats that the court had become too biased, and led many prominent Democrats to conclude that radical action was needed to prevent a GOP-led Supreme Court from dismantling voting rights. and the Republican power would otherwise be entrenched.
When candidate Biden was asked if he would support radical reforms, such as adding seats to the Supreme Court, he initially said he opposed these reforms. After Ginsburg’s death, he took a more agnostic stance, saying that although he “was not a fan of court packaging”, his approach to the case depended on how Barrett’s confirmation struggle played out.
Now that Barrett has been confirmed, it appears that Biden is signaling with his new commission that important reforms to the Supreme Court will not be on the table.
Why a High Court Commission on Milk is Important
Court packaging is not something that someone should do lightly. If the Democrats did add seats to the Supreme Court to change its partisan balance, the ruling would probably not be widely accepted for the decisions of the newly liberal court. That would be massive resistance from the Republicans.
As Judge Stephen Breyer recently warned during a lecture at Harvard Law School: ‘structural change [of the Court] motivated by the perception of political influence ”, will undermine confidence in the decisions of the Court.
Although Breyer rightly warned that significant reforms to the Supreme Court are likely to undermine the legitimacy of the court, the mere threat of court packaging could serve an important function. If the judges believe that President Biden can send them six new colleagues if the court dismantles the remainder of the Voting Rights Act, the judges may be less likely to dissolve the Voting Rights Act.
A healthy fear of a democratic majority could lead to the Supreme Court becoming less biased.
But Biden’s new commission is sending out the opposite message. With so many prominent members of the Federalist Association praising the commission right out of the gate, it is clear that conservatives do not feel threatened by this commission. And the judges themselves can just as well look at the list of names Biden has chosen and see that this commission is unlikely to support significant reforms.