Reflections on President Biden’s Supreme Court Commission

Ilya pointed out that the final report of the President Biden’s Commission on the Supreme Court on reforms was released earlier in the week by the Commission. It was my honor to be a part of the Commission. Now, after a few days, I am finally free to discuss the issues we dealt with.

Reflections from a Supreme Court commissioner is the working paper I posted.

This is Part 1:

Two ways can be approached Supreme Court Reform, as I see it. Look for reforms that are good. Regardless of one’s agreement with current Court decisions. This approach is a result of bipartisan expertise. Other options include looking for reforms which will be beneficial to the country. Make the Supreme Court’s decisions more readable. This approach, given the polarization around legal issues and other political considerations, is unlikely to be bipartisan. However it isn’t trying.

I believe both reform approaches work. . . . However, confusion between these two can lead to mischief and frustration. A bipartisan panel of experts is not necessary to examine reforms that could influence the Court’s decision-making. Experts on either side of the Court support its decisions. Experts will disagree about whether these decisions are good or bad. There won’t be any consensus for reform. In the absence of consensus from those without commitments, activists who believe the Court’s decisions threaten freedom and democracy won’t be affected. Both advocacy and analysis are valid as long as there are no illusions regarding what they are doing.

The question is whether or not outcome-motivated court-packing can be constitutional.

Is it important?What are the legal limits on this?

Although I do not know the answer, it could.

. . . imagine a moderate lawmaker (even a President …) who OverseasAs a matter policy, court-packing should be allowed. He thinks it is imprudent and unwise. He is being pushed by his left-leaning friends to vote for it. It is a matter of politics whether he will give in to the pressure if his main objections concern policy.  If he does not object to certain policy issues, it will be a political decision. HeIf he believed it was unconstitutional then his constitution oath gives him the freedom to do right.

The final section, part VI is now available.

The talents of my fellow members of the commission are a source I admire greatly. While I am sure that some would not agree with the above points, others might offer persuasive counterarguments which would alter my opinion on other points. The law and structure that made it difficult for us was not the best.

One of my biggest problems was the Federal Advisory Committee Act. It required all collective deliberations to be held in public. A statute I didn’t know much about. Public meetings can be both time-consuming and political fraught. Many people prefer to work in small groups or have one-on-one discussions to achieve as many goals as possible. These interactions cannot be seen by most commissioners, but they are necessary. This is why they are legal. Ironically, a statute that was intended to increase transparency in the Commission to the outside world actually made it less transparent.It even extends to its own members.

This was exacerbated by other factors – the size of the commission, the distribution of different views across different leadership roles, Zoom, and other operational constraints – and I fear that the result was to squander the overflowing amounts of intellectual ability and political judgment that filled the commission.

At the same time, whatever the constraints, there would have been no escaping the fact that the commission found itself operating in two different modes – an intellectual one and a more political one. Those two modes produce a natural tension. You can solve a political problem by omitting or watering down controversial sections. This is a negative way of contributing intellectually. Concrete intellectual claims, particularly to a committee, can sometimes be difficult to accept.

Maybe the Commission could have navigated these two routes in better conditions. We will never find out.

Get the entire thing.

A podcast episode has also been recorded by me and Dan Epps. Dan was an expert witness at the hearing. Here we discuss the process, and my own proposals for reform.

It’s here:

Out of Whack

This is the one we’ve been waiting months for: it’s finally time to talk about President’s Supreme Court Commission. It just finished its report last week. A brief discussion is also given about Dobbs, and we try to anticipate what the Court will do.