Below is my column in The Hill newspaper on the options that Vice President Joe Biden referred to in the last debate that might be considered by his new “commission” on Supreme Court reform. It’s worth looking at the Parade of the Terrible proposed by scholars to change the court to legally negate the majority of Conservative justices after Amy Coney Barrett was inducted into the court (as of today). The concern is that this goes little beyond what the Commission allows, as Democrats are claiming permission to do permanent damage to one of the most important institutions in our constitutional system.
Here is the column:
Monday’s vote to make Judge Amy Coney Barrett the 115th Supreme Court Justice will be more than confirmation. It will be a dispensation, according to former Vice President Joe Biden and various Democratic senators. They cited the vote as a discharge from any guilt when they fundamentally changed the court to get a liberal majority. Like schoolchildren who dare to step across a line as an excuse to fight, the Democrats insist that filling this post will result in changes ranging from “packing” the court to disenfranchisement in certain cases .
The problem is that the line that the Senate will take is laid down in the Constitution, while the Democratic proposals would take revenge against the use of constitutional power. Democrats hover in a parade of horrific to “reform” the Supreme Court and negate its growing Conservative majority. Biden said this week that the court had “gotten out of hand” and, as president, would assemble a commission of “experts” to “look into a number of alternatives that go well beyond packing”. The commission would report back to him 180 days after his inauguration.
Polls show that nearly 60 percent of Americans are against the Democrat-backed court-wrapping program, including Biden’s runner-up Senator Kamala Harris. One person not interviewed was the late judge Ruth Bader Ginsburg, who denounced such a system as a guarantee for the destruction of the court.
A poll by the New York Times and Siena College found that only 31 percent are in favor of packing in court. That’s a well-known figure: over the past four years, the same 30 percent of both parties have supported the most destructive policies and rhetoric. These extremes continue to control our politics while the vast majority of us in the middle watch in disbelief as virtually every Democratic senator uses one of the most maligned tactics in American history. These senators are not alone. A plethora of professors (who will likely be shortlisted for Biden’s commission) give credibility to the court wrap.
Harvard Professor Michael Klarman attacked the foundations of Congress before attacking the foundations of the Court. Klarman condemned a “maldistribution” in the Senate, which he believes gives Republicans more power, and called their refusal to vote on Obama court candidate, Merrick Garland, as “stealing a seat.” While this decision was controversial (and I was one of those who called for a vote on Garland), it was clearly constitutional. Klarman, however, illogically calls it “court wrapping” to justify any retaliation: “Democrats are not initiating this spiral. They simply respond in kind. “
He then says not to worry about Republicans reacting with their own court wrapping when they return to power. He insists that Democrats can change the system to guarantee that Republicans “never again win elections,” at least not without giving up their values. Of course, Klarman admits that “the Supreme Court could delete everything I just described,” so the court needs to be prepackaged for these changes to occur. Here are some of the other crazy ideas to get the dish going again.
Distance to jurisdiction
Several professors advocate a court wrap alternative that takes the opposite approach: if you can’t make the court bigger, you decrease its authority. By using “jurisdiction distance,” Democrats would prevent federal courts from reviewing certain types of law. In the face of a conservative court, a Democratic Congress would annul the courts to gain uncontrolled authority in various areas. Assuming the courts would allow such a move, it would lead to a race to the bottom as more and more legislation would be protected from judicial review.
Another approach is to leave the Supreme Court at its current size, but effectively “pack” the vote by requiring majority decisions. A democratic congress would improve the minority voices of the court by requiring a two-thirds vote or even unanimity for certain types of cases or laws. It’s an ironic idea since, against the advice of many, the Democrats got rid of the Senate filibuster for judicial nominations when he was in majority – which fundamentally changed the longstanding protection of a Senate minority. In that case, the Democrats would designate preferred areas or types of cases protected by super-major rules, thereby manipulating the court’s votes.
Pete Buttigieg and some scholars have suggested ignoring any pretense of impartial judges. They would transform the court into some sort of judicial federal communications commission, with Democrats and Republicans each choosing five judges, who would then choose five more from federal appeals courts to guarantee a one-year term. That would make the Supreme Court a crude reflection of our dysfunctional political times.
In particular, the Supreme Court is reviewing such a partisan court system in Carney against Adams. The case must be known to Biden as it is a goofy constitutional requirement from Delaware that the five seats on the state Supreme Court must be split between Democrats and Republicans to prevent an Independent from becoming justice. Apparently, in Delaware, a “balanced court” means that you must first determine that you are of the right party before you can bring justice. The proposal would have an ever-changing court, and since the five temporary judges would be chosen based on party affiliation, you’d likely end up peasants in a partisan calculation.
Another proposal would “solve” the “problem” of a conservative majority by turning literally every judge into an associated judiciary. A lottery is held every two weeks, with nine judges being chosen at random to hear cases. Each panel is limited to a maximum of five judges, appointed by a president of the same political party. Senator Bernie Sanders actually endorsed this crazy idea. It is similar to the character “Syndrome” in “The Incredibles” who explains that he would give superpowers to everyone because “if everyone is great … nobody will be”. It is unlikely that most Americans would want to replace today’s court with a law by lottery.
As someone who proposed expanding the Supreme Court decades ago, I am not against reform. However, Biden’s proposed commission is not about reform. It’s about packing, stacking, and removing plans for political results in the Supreme Court. Biden offers the institution to the 30 percent who demand extreme measures to quench their anger. Biden once condemned court packaging as a “bone-headed idea” – but now he can set up a commission to turn a variety of bone-headed ideas into real proposals.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University. You can find his updates online at JonathanTurley.