I don’t buy the jaded, knee-jerk conclusion that a commission is a way to bury the issue. At critical times in U.S. history, such bodies have helped to educate the public and create consensus, including the Social Security commission headed by Alan Greenspan under President Ronald Reagan and the 9/11 Commission under President George W. Bush.
“Biden’s idea of having a commission on courts could be a productive first step in restoring the public’s confidence in an institution that has been much maligned during the Trump administration,” says former federal prosecutor Joyce White Vance. “Dealing with systemic issues like delay and access matters. And sending a subtle signal to the courts to stay in their constitutionally mandated lane could encourage judicial restraint.”
Vance reminds us, “Alabama [convened a commission] when [former] Sen. [Howell T.] Heflin was Chief Judge Heflin, and it radically improved our court system. The federal courts are overdue.”
There are several positive aspects to convening such a commission. First, it would in effect put right-wing activists on the Supreme Court on notice. Should they reach back in history to shred major precedent or to eviscerate laws that Republicans could not repeal through the political branches (e.g., Obamacare), they will only increase the public’s growing perception that the court has become thoroughly politicized. Democrats will be emboldened to make changes. The public, if irate about conservative activists imposing policy preferences, could make this a winning issue for Democrats. Simply put, if Chief Justice John G. Roberts Jr. needs leverage to pull right-wing justices back from the brink, a commission looms as a caution that there is no guarantee the Supreme Court, as it looks today, will survive.
Second, there has been a healthy legal debate across ideological lines for term limits for justices as a way to reduce the political temperature around Supreme Court nominations — and to preserve the court’s reputation. In a report published before Justice Ruth Bader Ginsburg’s death this year, the Center for American Progress found: “An 18-year nonrenewable limit is overwhelmingly the most common proposal, although Chief Justice Roberts once expressed support for a 15-year term. Justice [Stephen G.] Breyer has argued that an 18-year term period would give justices enough time to fully learn the job and develop jurisprudence — a position bolstered by the fact that many justices have voluntarily retired after a similar period of service on the court. Moreover, under advocacy organization Fix the Court’s bipartisan model, the 18-year term would be staggered so that a vacancy would open every two years.”
Constitutional scholar Laurence H. Tribe tells me, “I’ve strongly supported this bipartisan expert commission idea for quite some time. It accurately reflects the substantive difficulty of the issue — both for the Supreme Court’s institutional role and for the future of constitutional democracy writ large.”
He continues, “It might well be true, as you implicitly suggest, that this announcement could empower the chief justice to hold his colleagues in check, but I don’t see that as one of its principal benefits or motivations.”
Tribe concludes, “From my perspective, it’s a good way to avoid a premature decision that would suck up more oxygen than it should at a time when the management of the pandemic and the restoration of decency in government ought to be front and center.”
Even if the commission does not come up with a solution that passes political muster, Biden is smart to at least try to reach consensus. If the Supreme Court goes on a tear and the commission comes up dry, Biden would then be in a better position to argue that expanding the Supreme Court is the only available option.