Court Re-Make Unlikely

Terry Schwadron
5 min readApr 12, 2021


Terry H. Schwadron

April 12, 2021

To fulfill a campaign pledge to look at what expanding the U.S. Supreme Court would mean, Joe Biden this week proposed a 36-member bipartisan commission filled mostly with academics, former federal judges and lawyers.

But he actually asked them to study the effects, not to make recommendations.

This feels like another big heave that will end up collecting dust on the Library of Congress shelves.

Sen. Mitch McConnell and Republican leadership just heard the first words before rejecting the entire idea. It was “open disdain for judicial independence” and a “direct assault” on the judiciary.” McConnell’s statement said, “Rational observers know well there is nothing about the structure or operation of the judicial branch that requires ‘study.’ ”

Actually, the system we have of having presidents nominate increasingly partisan judges, passing them through an utterly partisan Senate, and having the judges reflect worldviews that are vastly different from one another for the rest of their lives is pretty strange. The process is unwieldy, the adherence to precedent is increasingly shaky and the dripping partisanship that shows through is pretty disdainful itself.

Plus, the creation of the nine-member high court was a compromise of itself in the Civil War era in order to cover additional circuit courts in the expanding American West. So, the precedent of the make-up of the court itself was a political matter.

Of course, what is behind the current push for reconsideration has been the appointment of three justices by Donald Trump and McConnell’s Republican Senate majority that has given the court a 6–3 conservative majority that are making its way steadily through what is seen as alternately as restoring a more “originalist” view of the Constitution or an erosion of Civil Rights and more liberalizing leanings in the law.

A Political Institution

The single-most interesting course my roommate and I took in college focused on looking at the Court as a political institution, how it functioned as a human agency subject to all the willful and influence bending that we associate with legislatures. So, court-watching has remained of interest ever since.

It does seem pretty clear at this moment that if we were to invent a Supreme Court, we might well approach the task in a different manner. The justices always complain that they are overworked, and that they are deluged with thousands of cases that never even get heard. A lot of the cases that rise deal with relatively uncontroversial, if important, cases affecting interstate commerce, agency rules, interpretations of standing before the law.

But then there are those that directly affect lifestyle and personal choices, from abortion to same-sex marriage, religion, and, yes, politics. The justices regularly eschew the most publicly “political” of positions in an attempt that only poorly disguises their leanings.

For the political Left, which has come to rely on the Court to extend personal rights on race and labor, among others, the idea of a conservative majority is anathema, and so we are seeing pressure on Biden to try to increase the number of justices. For the political Right, which has looked to the Court to reject health care and abortion laws, things look good right now, so any reconsideration of Court makeup is objectionable on its face as “court-packing.”

Apart from the political count, it is strange that each president gets to pick justices reflecting his or her personal outlook only if a justice happens to die in office.

Wouldn’t it make more sense to have extended term limits rather than life appointments and for each president to appoint a certain number on a more regular time schedule? That’s how we run the FBI, the Federal Reserve and other posts. Couldn’t we reduce the friction over changing from a Ruth Bader Ginsburg overnight to an Amy Coney Barrett?

Biden, who doesn’t support court-packing, does support keeping his progressive wing happy, and does support gathering information before moving to any kind of decisions.

Thus, a commission of scholars given 180 days to produce a report. As The Washington Post noted, it is likely to disappoint liberals who are looking for quick action to blunt the court’s conservative majority and certain to upset conservatives who want no change. Just this week, liberal Justice Stephen G. Breyer warned that adding justices could make the court more political and undermine trust in the institution.

Mostly Academics

Most members are academics representing different philosophies. Bob Bauer, a top lawyer on Biden’s campaign, and Cristina Rodriguez, a professor at Yale Law School, will chair the commission, which will be run out of the White House Counsel’s Office.

The panel includes prominent liberals including Caroline Fredrickson, the former president of the American Constitution Society; Laurence Tribe, a professor emeritus at Harvard Law School, and Sherrilyn Ifill, president of the NAACP Legal Defense Fund. The group’s conservative members include Jack Goldsmith, a Harvard Law School professor and former top official in George W. Bush’s Justice Department; Keith Whittington, a professor at Princeton University, and Adam White, a resident scholar at the American Enterprise Institute.

“The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the White House said. “The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

One proposal would establish 18-year term limits for justices, with an option to continue serving on lower federal courts after their Supreme Court term expired. The idea of placing term limits on justices is seen as a less extreme approach to reform than some other ideas that have been floated in progressive circles and has garnered support from a number of constitutional scholars. Other proposed measures include narrowing the court’s jurisdiction, requiring a supermajority for decisions on some legal matters of consequence and imposing rules to create more ideological balance in the court’s composition.

I wouldn’t bet on any change coming soon.