The Week (US)

Judicial commission: What is Biden’s goal?

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President Biden has appointed a “commission to study changes at the Supreme Court,” said John Fritze in USAToday.com, and it’s got both Democrats and Republican­s in a lather. The 36-member bipartisan study group, created via executive order, will spend six months examining whether the number of justices should be expanded from nine—as well as whether justices should have term limits rather than lifetime appointmen­ts. Biden promised to create the commission on the campaign trail, in response to progressiv­e outrage that Republican­s had forged the current 6-3 conservati­ve majority by blocking Merrick Garland’s nomination. He has said that he’s “not a fan of court packing”—leading some Democrats to wonder if he created the commission “as a dodge” to avoid really confrontin­g the issue.

Actually, the commission is “rigged” to support court packing, said Quin Hillyer in Washington­Examiner.com. Though it includes a few conservati­ve scholars, it’s packed with “noted liberals” from academia and lawyers with long-standing ties to the Obama White House. It is likely to provide intellectu­al cover for a “power grab” that would fundamenta­lly alter the court’s compositio­n. Even liberal Justice Stephen Breyer opposes enlarging the court, saying in a speech last week that court packing would “feed the impression” the court had become overtly partisan. “Don’t be fooled,” said The Wall Street Journal in an editorial. Democrats may not be able to expand the court as long as the filibuster remains, but Biden’s commission will serve as an open threat to the court’s conservati­ves to “think twice about rulings that progressiv­es dislike.” Chief Justice John Roberts already seems to have been cowed in his recent votes in abortion and gun rights cases.

“In forming this commission, the main thing

Biden has done is kick the can down the road,” said Mark Joseph Stern in Slate.com. He’s stocked the group with legal Brahmins from Harvard and Yale “who have spent their careers marinating in the fantasy that the Supreme Court is apolitical,” so they’re likely to shun dramatic change. Still, term limits “should be high on the commission’s agenda,” said The Washington Post in an editorial. By institutin­g, say, 18-year terms for each justice, we could “lower the stakes” of each one’s appointmen­t and ensure that the president picks the most competent jurist available, rather than the youngest one who can survive confirmati­on and then endure on the bench for decades.

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