Supreme Court Presidential Committee throws the ball back to Biden


Author: Jerri-Lynn Scofield, he has served as a securities lawyer and derivatives trader. She is currently writing a book about textile craftsmen.

The Presidential Council of the U.S. Supreme Court was founded by President Joe Biden Executive Order of April 2021, Passed unanimously summary report, It was released yesterday.

As it was originally designed, the expert group did not take any position on the tricky issues of approving any specific reforms through “court packs,” term restrictions, rotation, or any other mechanism. On the contrary, the report puts forward arguments for and against various reform proposals.According to the Wall Street Journal The committee approved the report on the Supreme Court amidst partisan differences.

Sanford Levinson, a professor of law at the University of Texas, said: “The tone of this report is very cautious. It will lay a good foundation for classroom discussions. This is a mixed compliment.” “It is relatively fair. Obvious attention means that it is unlikely to generate any real political movement.”

The unlucky timing of the Supreme Court vacancy, and the unfortunate management of the Supreme Court’s nominations, such as the failure of Merrick Garland, and the failure to force Ruth Bud Ginsberg to retire from the Oval Office while the Democratic Party was in charge. The Senate has led to a 6 to 3 Conservative majority in the court.

The members of this group are composed of former judges, practicing lawyers and academics, and are inclined 6 to 1 in the direction that the American legal profession regards as progress. Despite this, the final report failed to endorse any court packaging plan. Some people say that doing so may provide Biden with political cover in an attempt to reshape the membership of the Supreme Court on the eve of the 2022 midterm elections. The more general majority view is that for Biden, doing so would be political suicide, and this has been a worrying year for the Democratic Party.

With the Supreme Court’s oral debate last week on a case questioning Mississippi’s restrictions on abortion, concerns about Supreme Court membership have increased. If, as expected, the court overturns or completely restricts the landmark Roe v. Wade framework of 1973 and makes abortion a constitutional right, most states are prepared to impose further restrictions on such procedures.According to NPR in If the “Row v. Wade” case is overturned, the “trigger law” is the abortion ban to be implemented:

At the end of this term, the Supreme Court will decide that Roe v. Wade’s Mississippi abortion case may be overturned. If judges accept the state’s broadest argument, about half of the country may soon be subject to strict abortion bans. This is because the law made by the state legislature is just waiting for the day when the Supreme Court ruled that there is no constitutional right to abortion.

The committee’s report does not support any court expansion plan, but instead provides a carefully balanced assessment of the arguments for and against in the 28-page chapter. According to an article in the Wall Street Journal:

“The study of the reform of the Supreme Court has never been so comprehensive and detailed; the history and legitimacy of various reforms; and the strengths and weaknesses of everyone,” said Liberal Commissioner Lawrence Tribbe, a Harvard law professor.

“But when I voted to submit this report to the president, I was not casting a vote of confidence in the basic legitimacy of the court. I no longer have that confidence,” he said, citing “the dubious ways of some justices” and “The anti-democratic and anti-equality direction of its decisions on issues such as voting rights, constituency divisions, and the corrupt effects of black money.” ,” All areas where conservative views prevail. Mr. Tribe said that this process has convinced him to support the expansion of the court, and he was skeptical of this position before.

Other scholars question the overall utility of the prudent approach adopted by the committee. According to the Wall Street Journal:

Another commissioner and former deputy attorney general, Walter Dellinger (Walter Dellinger) said that in the current political climate, it is unclear when “when someone has the right to invoke these reforms and what it means”. In the long run, he said: “We hope that the report’s explanation of the problem may be useful in a century.”

While some experts praised the academic quality of the report, they were not sure.

“In my opinion, it ignores the most important flaw in our current system: the partisan procedure for confirming appointment to the Supreme Court,” said Newton Minnow, the former chairman of the Federal Communications Commission, who served as Chief Justice Frey in 1951. Devinson’s Clerk-52 items.

Mino may be famous for his 1961 speech, in which he described American commercial television shows as “a vast wasteland,” but he did not lose his keen talent.

In contrast, unsurprisingly, the editorial board of the Wall Street Journal, in Biden’s Supreme Court Packers pack up Praised the method of the report and suggested that Biden should now firmly reject the call for reorganization of the court:

The Commissioner for Progress later claimed-we can’t imagine this being written straightforwardly-that court packaging can “quell disputes around the court.” It is more honest to claim that “attempts to expand” may intimidate, er, “cause the Supreme Court to exercise more restraint in its jurisprudence and to respect the role of political authorities.”Although we hope that the justices will not be intimidated, we doubt that progressives want them to Dobbs Abortion case.

Opponents of the court package scoffed at this. They explained that such a radical step would “seriously undermine the independence of the Supreme Court.” If government officials can change their personnel, the courts will not be able to conduct effective inspections on these government officials. Articles explaining the use of court packaging by tyrants in Turkey, Venezuela, and other countries are devastating.

The longer part of the report discusses the history of judicial review in the United States, as well as the possibility of judicial term limits, the jurisdiction of the courts, and emergency dossier—usually cautious about major changes. These literature reviews may be helpful for reading in law school, but they have less impact on Mr. Biden’s political dilemma.

The president should have rejected court packing a year ago, and now he is in a weaker political position. But if he wants to defend judicial independence now, this report contains the arguments he needs.

Bottom line

Biden has always intended to avoid any serious attempts to reform the Supreme Court. Otherwise, he would not engage in a time-wasting move to appoint a committee to study this issue. What is expected to be achieved? At least since Franklin Delano Roosevelt first proposed a court package plan in 1937 to overcome the Supreme Court’s hostility to its New Deal policy, arguments for and against restructuring have been widely known.

To be fair to Biden, the Democrats’ weak majority in the Senate will prevent the implementation of any major changes, regardless of his enthusiasm for any such plans. However, with this report, I think people can think that this problem is dead, at least for now.

In fact, as Politico reported at the end of last month, “They will freeze them”: Democrats worry that Senate Republicans will block Biden’s judgesAs the midterm elections approach, people are increasingly worried that if the Republican Party controls the Senate again, the government will not be able to get the judge to confirm. So we may see the evolution of the Merrick Garland redux scene.

Please stay tuned and pass the popcorn.



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