In the Washington Post were Harvard University’s Larry Tribe and former federal judge Nancy Gertner. In time, Ben Brauve was Kermit Roosevelt. Will Baude did it in the Volokh Conspiracy, and Keith Whittington did it in the Wall Street Journal. No doubt more members of President Biden’s Supreme Court committee will have something to say.
The final report was unanimously approved, in large part because it fairly reflects the arguments made for and against the various reform proposals and avoids making any recommendations, whether to do or do nothing.
The commission was not asked to make recommendations, but it did. I hope it provides some useful analysis of the reform proposals surrounding the Court.
Shaking might call this exercise of no actual benefit by characterizing a mean that involves numerical manipulation of sensitive parts of the genitals for self-gratification. But no academic could call it that, for it would make them outcasts in an institution whose best use would be to use as many words as possible, and to appear and appear in ever-changing order, to the overarching goal of offending no one. .
There was a large, and very politically urgent, question before the committee, about whether the court should be filled with additional judges to “balance” the three justices appointed by Trump. There was a long-running “handrail” case to prevent a future Supreme Court takeover, term limits.
The first is mostly that we can call supreme politics, or theories of constitutional interpretation. It was created by the combination of term of office and Senate approval of the Supreme Court, that the composition of the Court is not tied in a predictable and uniform way to the outcome of the presidential election. Some presidents appoint several judges; Some presidents do not appoint anyone. What determines the number of appointments a president gets is a combination of pure luck and a strong partisan ball. We do not use any other branch of our government in this way, and this has distorted the relationship between the court and democracy.
Roosevelt admits that, in the scheme of things, the nominations are the product of “a mixture of pure luck and ruthless party ball,” the latter meant that Mitch McConnell disgraced, albeit legally for better reason than no cure, and refused to allow Merrick Garland’s nomination to be considered. To a large extent, this is McConnell’s response to his political machinations. He might be fine with that.
Gertner and Tribem are less moderate in their argument.
Balancing the way the Court has been “mobilized” in an undemocratic direction with additional appointments tilting the other way is the most clear constitutional step that can be taken quickly. Of course, there is no guarantee that the new judges will change the destructive direction of judicial doctrine that we have set; Respecting the independence of the judiciary makes this impossible. Of course, successive presidents might expand the court further, in the absence of an elusive constitutional amendment that would cap its size at a number like 13. But the costs are worth the benefits.
In plain English, the court’s current constituency is bad and needs to be fixed. In contrast, Whittington presents the counter-argument.
If such a drastic measure was really necessary, there would have been widespread political support for it. If a narrow political majority can convince itself that we are in such a crisis, the problems facing the country run much deeper than a misguided court.
The size of the court can be changed to reverse constitutional provisions that politicians dislike through a simple legislative majority. Strong constitutional rules helped prevent lawmakers from blowing up the court when they were unhappy with judges or when a new party took power. The erosion of these standards will have long-term consequences for how the constitutional system operates and how effective the Court is in addressing constitutional violations.
There are two additional points to be made, first, that stuffing the court as a reaction to its composition is the most obvious political response possible. If you see Trump appointees as purely political choices, a purely political reaction may seem quite appropriate. But then, any faith in the legitimacy of the Supreme Court as an anti-democratic institution is meant to be lost. Forget the mechanisms of future expansion to maintain vote fraud. This will be how the political court is formed.
Second, the legal war has turned the Supreme Court into a battleground for overcoming the paralysis of Congress. What cannot be achieved through the political branches is sought by the judiciary. Except that the judicial branch is not built to be a legislative alternative and it does poorly, both in terms of arriving at conclusions consistent with approval of public policy or dealing with the myriad of screws in turning their rulings into action.
Sometimes, it is because an important part of a case is not before the court, and so the court, in its exercise of humility, does not deal with it, leaving the community without the means to enforce the judgment. Other times, he just chooses not to get his hands dirty, or doesn’t appreciate the problems on the ground related to making judgment in the real world, and leaves it to others to find out.
Kermit Roosevelt uses current abortions to make his point, increasing the possibility that Roe and Casey will be reversed or restricted. Others question why abortion should ever be left to court when it is a political choice and not just a semi-faint shadow.
But since the Commission has made no recommendation, the same arguments will run in the same circles with the same passion and concern, while the Supreme Court makes decisions outside the modest limits of its jurisdiction that will almost certainly undermine the appearance of legitimacy no matter how. The court rules, unless decisions are essentially unanimous. Even so, most believe the rulings are legitimate.
We need a Supreme Court, for better or worse, whose rulings will be accepted regardless of what we think is the last word in constitutional and legislative interpretation. We need to make hard decisions about how that court should operate, not re-arrange the same arguments forever.
We cannot act if we are in a constant state of argument that never goes anywhere or leads to any final decision. As someone who has argued throughout his career that the Supreme Court is often more wrong than right, and has witnessed the damage done in the trenches of its rulings, I still prefer a bad court over no court. Stop arguing and make a decision. This whirlpool has to stop so we can move on.