Nothing will be fixed by Biden’s Supreme Court reform.  

The latest commission of the president Joe Biden has a lot of fans—in the Federalist Society.

In 2014, Judge Thomas Griffith gave Halbig v. Burwell an opinion, which could have wrecked Obamacare’s insurance markets in more than 30 states and eventually deprived millions of Americans of health cover. Griffith’s court ultimately vacated the Obamacare ruling and the Supreme Court dismissed Griffith’s arguments in King v. Burwell (2015) – but the Obamacare administration, health activists, and patients were not thrown into a year of rebellion until the Halbig decision.

On Friday, President Joe Biden announced the signing of a “Presidential Commission on the Supreme Court of the United States” Executive Order. Griffith — who withdrew from the Federal Bench in 2020, enabling former President Trump to elect his successor — is one of several leading conservators on this committee that the White House says Biden has named to ‘submit an overview of the key reasons for and against the reform of the Supreme Court in contemporary public discourse.’

Despite the fact that the author of one of the most significant attacks on Obamacare in the last decade is on Biden’s commission, none of the leading academic advocates for Supreme Court reform is named.

Biden first said he would appoint a committee of leading academics to research potential changes at the Supreme Court in October. Biden was then divided between Senate Republican liberal progressives who were furious about the GOP’s attempts to ensure control of the Supreme Court and Republican opponents who accused Democrats that they wanted to add places to the Supreme Court so as to reverse the GOP’s efforts.

Instead of taking a stand on whether to add seats to the Supreme Court, Biden eventually punched the matter with his promise to name a commission until after the elections.

He has now named this Commission and the names of the Commission are remarkable, calculated solely by its intellectual firepower. It includes some of the leading legal academics in the world, such as Dean Heather Gerken of Yale Law School and Laurence Tribe of Harvard.

However, the committee does not include law professors Daniel Epps and Ganesh Sitaraman, authors of the highly influential proposal that the Supreme Court should be expanded to 15 judges and that key members of the Court should be elected in a bipartisan trial that makes the Court less conservative. And it does not involve Aaron Belkin, professor of political science and chief of Take Back the Court, an organisation for change. The White House seems to emphasise bipartisanship and influence within the legal academy by selecting representatives who actually spent a considerable amount of time advocating the changes of the Supreme Court.

(I approached the White House for comment on some of the issues posed in this article, but did not hear anything from them in this letter. We will update this article to include the comments of the White House if they answer.)

When the White House published the list of committee members on Friday, it was quickly praised by members of the Conservative Federalist Society. The commission was lauded by Evan Bernick, a law-libertarian professor at Georgetown, as a “powerhouse group of scholars.” Stephen Sachs, a professor at Duke law who received the Joseph Story Award from the Federalist Society in 2020, called the commission an “incredibly balanced list.”

Ilya Somin, a Professor of Libertarian Law at George Mason University, wrote soon after the Commission membership was revealed, “The composition of the Commission is also bad news for lawyers who may have hoped for a report that endorses the proposal.”

So if the intention of the White House was to alleviate fears among conservatives that President Biden would attempt to curtail the power of the Republican Party over the judiciary, it would appear that this commission has achieved its goal.

How did we get there?

Not long ago, the idea of the Supreme Court gaining additional seats to alter its party make-up was considered rather radical. President Franklin Roosevelt suggested that this be done in 1937 in order to neutralise a tribunal that often struck New Deal projects on false legal grounds.

But in recent years, a number of critical incidents have persuaded many Democrats of the unjust stacking of the Federal Judiciary. After the death of Justice Antonin Scalia in February of that year, in 2016, Senate Republicans also declined to allow President Obama’s nominee to the Supreme Court, now General Attorney Merrick Garland, a confirmatory hearing.

At the time, Republicans argued that confirming a nominee for the Supreme Court in a presidential election year was unacceptable.

However, then in September 2020, Justice Ruth Bader Ginsburg died and the Republicans promptly abandoned their invented stance in order to justify the appointment of Garland. Justice Amy Coney Barrett, Trump’s candidate, was confirmed just 8 days before the 2020 election, which put Trump out of office.

Two other major traumas were suffered by the Democrats between Garland’s unsuccessful and Barrett’s successful nomination. The first was that Trump became president, while almost 3 million votes fell short of Democrat candidate Hillary Clinton. Republicans have dominated the Senate for the entire presidency of Trump — but only through misrepresentation controlled the Senate. During the presidency of Trump, the Democratic “minority” in the Senate represented millions more American people than the Republican “majority.”

Indeed, all three appointees from Trump’s Supreme Court were nominated by a president who lost the popular vote and approved by a block of senators representing less than half the nation.

The second trauma was confirmed by Judge Brett Kavanaugh, who was credibly accused of raping Dr. Christine Blasey Ford in high school in Kavanaugh and Ford.Kavanaugh reacted with anger before the Senate Judiciary Committee to these allegations and seemed to be threatening revenge against the Democrats for repeating the allegations — “what happens is coming around,” Kavanaugh said to the committee.

All this added to the democrats’ sense that the Court had become too political and led many influential democrats to infer the need for radical action to prevent the Supreme Court-led by the GOP from repealing voting rights and otherwise consolidating Republican control.

Yet when asked if candidate Biden would support radical changes, such as the addition of seats to the Supreme Court, he initially said that he did not agree with those reforms. After the death of Ginsburg, he took a more agnostic stance, saying that while he was “not an enthusiast of court-packing,” his approach to the matter would rely on how the Barrett confirmation battle took place.

However, with his new commission, Biden has now announced that major changes to the Supreme Court would not be on the table.

Why a Supreme Court Milquetoast committee matters

Court-packing isn’t anything that anyone can do lightly. If Democrats added seats to the Supreme Court to shift their party balance, it is probable that the recent liberal court decisions will not be widely accepted. There will be huge Republican opposition.

In the course of a lecture given by Justice Stephen Breyer at the Harvard Law School, “structural changes inspired by the perception of political power” would undermine trust in the judgments of the Court.

But while Breyer is right to alert the Supreme Court that major changes are likely to weaken the integrity of the Court, the simple threat of a court package may serve an important purpose. If the judges believe President Biden will give them six new colleagues if the Court dismantles the remaining provisions of the Voting Rights Act, then these judges will not dismantle the Voting Rights Act.

The Supreme Court could become less partisan of a healthy fear of a Democratic majority.

But the latest commission from Biden sends the opposite message. With so many influential federalist members supporting the commission right at the front of the entrance, it is obvious that the Conservatives are not concerned with the commission. And the courts are therefore able to look at the list of names that Biden has chosen and see that this committee probably does not support major changes.

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