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Presidential Commission on the Supreme Court of the United States

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Presidential Commission on the Supreme Court of the United States
Seal of the president of the United States
History
Established byJoe Biden on April 9, 2021
DisbandedDecember 8, 2021
Related Executive Order number(s)14023
Membership
ChairpersonRobert Bauer
Cristina M. Rodríguez

The Presidential Commission on the Supreme Court of the United States (PCSCOTUS), also known informally as the Supreme Court commission, was a Presidential Commission established by U.S. President Joe Biden to investigate the idea of reforming the Supreme Court. It was slated to provide a nonpartisan analysis of "the principal arguments in the contemporary public debate for and against Supreme Court reform".[1]

The commission issued its final report on December 8, 2021, which reviewed various legal questions about the Supreme Court. It did not recommend major changes to the operation of the Court, and no reforms resulted from the Commission.

Origins

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When Merrick Garland (left) was nominated 237 days before the 2016 presidential election, the Senate refused to conduct hearings. When Amy Coney Barrett (right) was nominated 35 days before the 2020 presidential election, the Senate approved her nomination.

Politicization of the Supreme Court

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Main article: Amy Coney Barrett Supreme Court nomination

Months before the commission was established, Amy Coney Barrett had been nominated to the Supreme Court by then-president Donald Trump.[2] This nomination was controversial. In 2016, Republicans had invoked the informal and seldom-used Thurmond rule to block the nomination of Merrick Garland, based on its proximity to a presidential election.[3] Garland's nomination had come nearly 10 months before the 2016 United States presidential election. However, Trump's nomination of Barrett came just over one month before the 2020 United States presidential election, and was appointed to the court. Many Democrats interpreted this as unjust, and proof of politicization in Supreme Court nominations.[4] This grievance, along with the Republicans' resulting 6-3 majority, led to pressure from some Democrats to respond accordingly.[5]

Proposals from Democrats

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During the 2020 Democratic primaries, Pete Buttigieg proposed that the size of the Supreme Court be increased to 15, in order to reduce the significance of partisanship. He described the proposal as "no more a departure from norms than what the Republicans did to get the judiciary to the place it is today”.[6]

Rather than a specific proposal, Biden signaled the idea of the commission on the 2020 campaign trail, saying the court was "getting out of whack". Biden also stated that "it’s not about court-packing,” adding that "there’s a number of other things that our constitutional scholars have debated… the last thing we need to do is turn the Supreme Court into just a political football".[7] Biden won the Democratic primary, and then the 2020 United States presidency.

Commencement

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The commission was established through Executive Order 14023, issued on April 9, 2021.[8] The order determined that the commission must issue a report within 180 days of its first public meeting,[1] which took place May 19, 2021.[9]

An editorial of The Wall Street Journal wrote that the commission's membership "tilts sharply to the legal and political left",[10] and the libertarian Cato Institute estimated the ratio of progressives to conservatives as 3:1.[11] However, an article in Vox described the membership as a "win for the [conservative] Federalist Society", saying that "while the author of one of the most significant attacks on Obamacare in the last decade [Thomas B. Griffith] is on Biden’s commission, none of the leading academic proponents of Supreme Court reform were appointed". These leading academic proponents included Daniel Epps and Ganesh Sitaraman, who had authored Pete Buttigieg's proposal to expand the Supreme Court, and who were not invited to the commission.[12]

Report

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See also: Supreme Court of the United States § Criticism and controversies

The final report was submitted to President Biden on December 7, 2021 with unanimous approval.[13] The 300-page final report reviewed the history and legal significance of various questions around the Supreme Court, but did not support any structural changes.[14] While it was generally supportive of allowing TV cameras in the courtroom, it did not take a position on issues such as term limits or expanding the court.[13]

Biden had not asked the commission for recommendations, and did not commit to a specific timeline to review the report. This led to criticism that the report was not seriously intended to improve the institution. Some progressive members of the commission specified that their approval was to submit the report to Biden, not a vote to retain the status quo.[14]

As of 2024, no legal reforms have resulted from the commission.

Members

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Member Role Relevant experience Appointed Left commission
Robert Bauer Co-chair Former White House Counsel April 9, 2021 December 8, 2021
Cristina M. Rodríguez Professor at Yale Law School
Michelle Adams Member Professor at the Cardozo School of Law
Kate Andrias Rapporteur Professor at Michigan Law School
Jack Balkin Member Professor at Yale Law School October 2021
William Baude Professor at the University of Chicago Law School December 8, 2021
Guy-Uriel E. Charles Professor at Duke Law School
Andrew Manuel Crespo Professor at Harvard Law School
Walter E. Dellinger III Professor at Duke Law School; former Acting Solicitor General of the United States
Justin Driver Professor at Yale Law School
Richard H. Fallon Jr. Professor at Harvard Law School
Caroline Fredrickson Former president of the American Constitution Society
Heather K. Gerken Dean of Yale Law School
Nancy Gertner Former judge of the United States District Court for the District of Massachusetts
Jack Goldsmith Professor at Harvard Law School; former United States Assistant Attorney General for the Office of Legal Counsel
Thomas B. Griffith Former judge of the United States Court of Appeals for the District of Columbia Circuit
Tara Leigh Grove Professor at the University of Alabama Law School
Bert Huang Professor at Columbia Law School
Sherrilyn Ifill President of the NAACP Legal Defense Fund
Olatunde C. Johnson Professor at Columbia Law School
Michael S. Kang Professor at Northwestern Law School
Alison LaCroix Professor at the University of Chicago Law School
Margaret H. Lemos Professor at Duke Law School
David F. Levi Former dean of Duke Law School; former chief judge of the United States District Court for the Eastern District of California; former judge of the United States District Court for the Eastern District of California; former United States Attorney for the Eastern District of California
Trevor Morrison Dean of the New York University School of Law
Caleb Nelson Professor at the University of Virginia Law School October 2021
Richard Pildes Professor at the New York University School of Law December 8, 2021
Michael D. Ramsey Professor at the University of San Diego Law School
Kermit Roosevelt III Professor at the University of Pennsylvania Law School; great-great-grandson of Theodore Roosevelt
Bertrall Ross Professor at the UC Berkeley School of Law
David A. Strauss Professor at the University of Chicago Law School
Laurence Tribe Professor at Harvard Law School; co-founder of the American Constitution Society
Adam White Resident scholar at the American Enterprise Institute
Keith Whittington Professor at Princeton University
Michael Waldman President of the Brennan Center for Justice; former White House Director of Speechwriting December 8, 2021

Two of the commission's members, Caleb Nelson and Jack Goldsmith, had resigned their positions by October 2021.[15]

See also

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References

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  1. ^ a b "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States". whitehouse.gov. April 9, 2021. Retrieved April 9, 2021.
  2. ^ "Biden assigns study on delicate issue of Supreme Court". Associated Press. April 9, 2021. Retrieved April 9, 2021.
  3. ^ "What every Republican senator has said about filling a Supreme Court vacancy in an election year". PBS NewsHour. September 19, 2020. Retrieved August 14, 2023.
  4. ^ Biskupic, Joan (January 30, 2021). "Biden's Supreme Court commission set to launch as some liberals are eager to pack the court | CNN Politics". CNN. Retrieved August 14, 2023.
  5. ^ "Wisconsin Democrats combat threatened impeachment of court justice with $4M effort". ABC News. Retrieved September 12, 2023.
  6. ^ Millhiser, Ian (October 30, 2019). "Pete Buttigieg longs for a non-political Supreme Court. That's not really possible". Vox. Retrieved August 14, 2023.
  7. ^ Vazquez, Maegan (October 13, 2021). "White House commission on the Supreme Court to release draft materials Thursday | CNN Politics". CNN. Retrieved August 14, 2023.
  8. ^ Establishment of the Presidential Commission on the Supreme Court of the United States from the Federal Register
  9. ^ May 19, 2021 from whitehouse.gov
  10. ^ The Editorial Board (April 9, 2021). "Opinion | Biden Commissions the Supreme Court". The Wall Street Journal. ISSN 0099-9660. Retrieved August 14, 2023.
  11. ^ "Biden's Supreme Court Commission: Who's On It and Why Explained". news.bloomberglaw.com. Retrieved August 14, 2023.
  12. ^ Millhiser, Ian (April 10, 2021). "Biden's new Supreme Court commission is a win for the Federalist Society". Vox. Retrieved August 14, 2023.
  13. ^ a b "Final Report | PCSCOTUS". The White House. Retrieved August 14, 2023.
  14. ^ a b Kruzel, John (December 7, 2021). "Biden Supreme Court study panel unanimously approves final report". The Hill. Retrieved August 14, 2023.
  15. ^ "Biden's Supreme Court Commission Loses Two Conservatives (2)". Bloomberg. October 15, 2021. Retrieved April 4, 2022.
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