The Supreme Court.
When the trial issue became a major controversy during the 2020 campaign, Joe Biden tried to get around it by proposing a non-partisan judiciary reform commission. At the time, I suggested that the commission’s idea was an indication that Biden would prefer not to advance the trial. In contrast, co-blogger Josh Blackman claimed there were plans to create a commission of trial supporters who would then recommend boxing and give it a boost.
It’s not yet entirely clear who was right. But early signs suggest my prediction was closer to the truth. As Josh notes, a recent Politico article reports that the person who organizes the commission and directs the membership selection effort is Biden advisor and former White House advisor to the Obama administration, Bob Bauer, who is also will chair the commission.
Does Bauer have a position in court packaging? It so happens that he does. As early as July 2018, he wrote an article in the Atlantic entitled “Liberals shouldn’t grab the courts,” in which he spoke out against proposals by other liberals to grab either the Supreme Court or the lower courts. He opposed such plans on both principled and pragmatic grounds, fearing that trials would damage the institution of judicial review and possibly also politically damage the Democratic Party.
With Bauer leading the selection, it is highly unlikely that the commission will be “full of court packers”. On the contrary, it is more likely that a functioning majority will be against the idea instead. At the very least, the Commission is almost certain not to reach a broad consensus in favor of trial or any similar scheme such as “rotation” and “court redress”.
Politico reports that Harvard Law Prof. Jack Goldsmith will be another member of the commission. Goldsmith is a prominent Conservative legal scholar and former Bush administration official (and with Bauer an important new book on executive reform). Although he was very critical of Trump on many matters, he appears generally satisfied with his Supreme Court nominee and is almost certainly against any form of trial.
There will be at least one member who may agree to the trial: Caroline Frederickson, former president of the American Constitution Society (liberal counterpart to the Federalist Society). The other co-chair of the commission will be Yale Law School Prof. Cristina Rodriguez, a well-known researcher in immigration and constitutional law. While she happens to be my law school classmate and a former adversary of the high school debate, I honestly don’t know where she is in the trial debate. But even if she supports the idea, I still think it’s unlikely that the commission (which is expected to have 9-15 members in total) will have a clear majority in favor of packing.
If the Commission reaches consensus on a proposal, it is likely to find broad support in the legal community and cross ideological boundaries. One such idea could be term restrictions on Supreme Court judges, a proposal supported by numerous legal scholars and other experts both right and left (myself included). In his Atlantic article, Bauer wrote that conceptual boundaries are an idea worth discussing. On the other hand, President Biden has expressed his opposition.
I assume that the Commission will ultimately recommend reforms. However, the trial is unlikely to be one of them, as Conservatives and libertarians are almost uniformly opposed, while Liberals are internally divided on the matter (although left-wing support for the trial has increased significantly as a result of the arrogance of Republicans’ behavior in recent confirmation battles).
Regardless of what the Commission does, it is highly unlikely that legal proceedings will be launched anytime soon. In the 50:50 split Senate, Democrats need every single D vote to get them passed (with Vice President Kamala Harris breaking the tie). But key swing voters Joe Manchin and Kyrsten Sinema have already expressed their opposition. Other democratic moderates could also oppose it. I am skeptical that court hearings can even happen in the House of Representatives, where the Democrats only have a slim majority, even depending on moderate votes.
Additionally, getting court hearings passed by a narrow Senate majority would likely require the filibuster to end. Manchin and some other moderates are also against it.
But it would be wrong to believe that the trial problem will simply go away. In recent years the once unthinkable proposal has clearly become part of mainstream political discourse on the political left. Thanks in part to the malevolent behavior of Republicans (where the party first claimed it was wrong to vote on a Supreme Court candidate in an election year in 2016, and then took the completely opposite stance when it became appropriate in 2020). Overton Window “on the subject has been moved. Like Trumpian nativism on the right and Medicare for All on the left, the packing of dishes is an idea that has moved from outside the mainstream to very much inside the mainstream. It is becoming not be easy to bottle the genie again.
A combination of larger majorities in Democratic Congress and decisions by the Supreme Court that greatly anger the left (and the general public in particular) could revive the problem in the next few years and make the trial more politically viable than it is now.
Whether the problem is still good or bad depends on your point of view. For Liberals who believe court wrappings are a legitimate response to previous GOP skull diggers to reclaim one or more “stolen” Supreme Court seats, the difficulty of completely burying the idea is good news. I believe that meal packing would be far worse than other gimmicks recently nominated by the judiciary and so this needs to be prevented, even though the GOP deserves a significant portion of the blame for keeping things at the Get to the point where the idea went mainstream (Democrats aren’t innocent lambs, either).
Overall, Biden’s proposed commission is unlikely to kickstart the trial, which in any case is highly unlikely to get passed in the current Congress. However, the idea remains a part of mainstream politics and so it could become more workable at a different time in the next few years.