the Court’s size and membership, and (5) the process of case selection and review. There are three striking things about this commission: It’s big (36 members), progressive (about a 3‐to‐1 ratio), and academic (all but four are professors, plus two retired judges who teach part‐time). Its size will make hearings unwieldy, not to mention the difficulty of trying to write a report by super‐committee. Its ideological skew won’t give the group credibility with Republicans, though the media will use the presence of the token non‐progressives to paint any recommendations as bipartisan. And its recruitment from the faculty lounge will make it easier to dismiss its work as ivory‐tower pontification. The commission’s membership and its order to “closely study measures to improve the federal judiciary” does nothing to dispel the perception that such presidential actions are little more than kicking cans down the road. The administration undoubtedly hopes that these issues will be less salient when the eventual report comes out – six months after the first public meeting, so by Thanksgiving – with congressional action possible only on technocratic suggestions like adding lower‐ court judgeships. The Senate won’t eliminate the legislative filibuster to radically restructure the judiciary. Coincidentally, earlier in the week that the commission was announced, Justice Breyer cautioned against court-packing (as Justice Ginsburg had). The Court’s “authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics,” Breyer said at Harvard Law School.
The commission’s membership and its order to “closely study measures to improve the federal judiciary” does nothing to dispel the perception that such presidential actions are little more than kicking cans down the road. quote a brief filed by Democratic Senator Sheldon Whitehouse in last year’s Second Amendment case, “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” Indeed, the Court is the most respected government institution other than police and the military, so questions of legitimacy principally arise when the justices rule in ways that disagree with progressive orthodoxy. To Commission Co‐Chairman Bob Bauer, who was counsel to the Biden campaign and President Obama’s White House, is against court‐packing, but he’ll have a hard time reining in that kind of impulse. Even if he builds consensus over something like term limits – which could eliminate the morbid health watches we now have as justices age – that wouldn’t fix the underlying reason why we argue about the Supreme Court. All these “reform” proposals boil down to rearranging deck chairs on the ship of state,
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