Biden's Supreme Court Group Begins to Emerge, but Few Major Reforms Expected | National Law Journal

What should the Supreme Court look like and why?

First: its power should be reduced.  Why? Its structural position as an unreviewable last word on constitutional interpretation, life tenure, domination of the Senate by rural, white ruled states have created a body which is hostile to the dominant, urban-dwelling, increasingly ethnically diverse people of the country.

The evidence is that it has been overwhelming a force for ill in the history of a country which was founded on a nearly fatal compromise among slave-holders, merchants, and farmers. The price was history's bloodiest war - between the slave states and those who fought its expansion. For the first seventy years scarcely a decent word came out of the United States Supreme Court.  Its Dred Scott v. Sanford decision denying African Americans every form of right brought the country to war as it represented the sacrificer of the Independence Declaration's Enlightenment values on the altar of hereditary chattel slavery.

Radical Republicans and the victorious Union's General as President embedded the three post civil war amendments in the Constitution.  For a short period of time the "new birth of freedom" hailed by Abraham Lincoln at Gettysburg felt possible. Slavery was abolished, equal protection of the laws promised, and the right to vote for African American men enshrined.

But by 1883 the post Civil War civil rights acts like the Civil Rights "enforcement" Acts of 1866 and 1875 were gutted in a string of decisions like Cruikshank and the misnomer of the Civil Rights cases.

A system of apartheid followed for eighty years - until the Montgomery bus boycott and the shame of it all impelled the Supreme Court to call a halt in 1954 via Brown v. Board of Education.  A window opened but came gradually down on fingers in 1974 when the Court put an end to racial desegregation of education in the north in its Milliken v. Bradley decision.  Since then the main trend has been Thermidor, with the exception of progress on the rights of women, gays, and lesbians.

Now comes the reform question.  

So putting aside the unlikelihood of major change in the strangely scriptural reverence of the Constitution and the Court, let me say what I think should be done:

* 18 year terms of federal judges

* 17 on the Supreme Court which would sit in panels of nine. dissent by three would send the matter to the full court sitting en banc

* NOT filling the new slots with former clerks replicating the mentors of the their youth

* appointing former U.S. and State Attorneys General (Robert Jackson), Senators (remember Hugo Black), Governors (Frank Murphy, Earl Warren); rights litigators (RBG), and (what the hell) a former public defender.

Such a Court would begin the reflect the broader national ideological cast.

- GWC

Biden's Supreme Court Group Begins to Emerge, but Few Major Reforms Expected | National Law Journal

By Jacqueline Thomsen

President Joe Biden’s promised commission on U.S. Supreme Court reforms is coming together—but legal experts aren’t counting on radical changes to come to the court as a result.

Bob Bauer, a former White House counsel under President Barack Obama, will co-chair the group alongside Yale Law professor Cristina Rodriguez, a former deputy assistant attorney general in the Obama Justice Department’s Office of Legal Counsel.

The commission’s full roster has not yet been finalized, but conservative Harvard Law School professor Jack Goldsmith and former American Constitution Society president Caroline Fredrickson are also among the members. Politico first reported on the membership of the committee.

Bauer, a former Perkins Coie partner, was a legal adviser for the Biden campaign and spoke out publicly against efforts by then-President Donald Trump and his allies to overturn the election results. He and Goldsmith recently co-authored a book on the presidency, detailing potential reforms for the office.

Rodriguez, who clerked for Justice Sandra Day O’Connor and Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit, does not appear to have spoken publicly on the issue of court reform; neither has Goldsmith, a conservative who supported Justice Brett Kavanaugh’s nomination to the court. Goldsmith headed the Office of Legal Counsel for part of President George W. Bush’s administration.

Frederickson, the former leader of the liberal-leaning ACS, has floated the idea of expanding the U.S. Supreme Court in the past. She declined to comment. Goldsmith and Rodriguez both did not return requests for comment.

The issue of reforming the Supreme Court has long percolated among the legal community, but it reached a fever pitch last year with the passing of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett days before the election.

Trump and then-Senate Majority Leader Mitch McConnell oversaw the confirmation of more than 200 Article III judges, particularly after McConnell blocked judicial nominations during the last two years of the Obama administration, including his pick to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death.

Biden committed to the commission during the campaign, saying he would first hear its recommendations before deciding on any court reforms including expanding the number of justices. He has said the commission would be bipartisan and feature a diverse range of expert views and perspectives. Members will work on the topic for 180 days before issuing a report to Biden.

An administration source familiar with the commission said the group will also seek outside experts and scholars, and will hear public testimony. The source added that the commission is part of a larger push from the administration on court reform, including potential changes to the lower courts.

“The president remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks,” a White House official said in an emailed statement.

‘Mostly Symbolic’

While the commission’s membership is not finalized, never mind made fully public, some in the legal community who are not involved in the group are already keeping their expectations low as to what kind of reforms will emerge.

While some applauded Biden for considering changes to the court, others—particularly progressives—bemoaned the commission, claiming it would blunt the momentum for change.

Some court reform advocates would like the group to include figures beyond those from academia, potentially including themselves.

“If the commission is conceived as a group comprising just law professors, I get concerned that we might just be talking about theoretical solutions,” said Gabe Roth, the executive director of the pro-reform group Fix the Court. “And I think it would behoove them to include the folks that are actually working in the field to make these reforms a reality every day.”

Christopher Kang, the chief counsel for the progressive group Demand Justice, said at a Brookings Institution event on court reform this week—before the members of the commission were first reported—that he believes the final composition of the group will likely speak to what kind of recommendations they’ll be expected to make.

“Are these commissioners going to be people who are committed to reform, or is the commission’s first step is going to have to be to debate whether or not reform is even necessary?” Kang said. He added that he would like to see non-academics on the commission, and said members like former Attorney General Eric Holder—who spoke in favor of reform earlier during the event—would give him “confidence” about the group’s direction.

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