Tuesday, April 13, 2021

Biden's SCOTUS Commission Apparently Lacks Authority To Make Recommendations And Is (Way) Too Large

 by Michael C. Dorf

Last week, President Biden fulfilled a campaign promise to create a commission to investigate possible reforms of the Supreme Court. In today's post, I'll offer a few thoughts about the commission. As I read the Executive Order establishing the commission, there is no authority to make recommendations. The EO tasks the commission with soliciting public input, meeting, and producing a report that summarizes the background, history, and current debate over various reform proposals, presumably including but not specifically mentioning Court expansion.

The one provision of the EO that comes closest to authorizing a recommendation requires that the report contain "[a]n 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." I suppose that the commission could read that authorization expansively, treating "analysis" and "appraisal" as the equivalent of "recommendation," but that is not usually how commissions work.

Politicians who want recommendations know how to ask for them. Thus, Congress appropriated over a million dollars for the Iraq Study Group, which eventually produced a report with 79 concrete and detailed recommendations. If President Biden were really interested in recommendations for legislation or other action, he could have asked for them more directly.

To be sure, with Senator Manchin having ruled filibuster reform off the table, no dramatic recommendation could be enacted anyway. Court expansion would require legislation. Term limits for Justices would require at least legislation and possibly a constitutional amendment. Neither would happen in the current Congress.

It is thus tempting to dismiss the commission as a pointless charade. In the balance of this post, I shall succumb to that temptation, but with an important caveat.

The caveat is that in some sense the commission has already served its chief purpose. Its creation fulfills a campaign promise that it was useful for candidate Biden to be able to make as a straddle between the druthers of progressive Democrats--who saw (and continue to see) Court expansion as compensating for the McConnell/Trump theft of the Scalia seat and the unseemly rush to fill the Ginsburg seat--and independents/moderates who might be scared off by the prospect of Court "packing" (or "rebalancing" or whatever expansion might be called). As a candidate, Biden used the prospect of a commission to try to appease progressives while signaling to independents and moderates that he would not push Court expansion.

One might think that the progressives got snookered by this straddle, but that's only clear in retrospect. Biden promised to create the commission at a time when it looked like Democrats might enjoy more substantial margins in the House and Senate. In October of last year, it was realistic to imagine a Court-expansion bill emerging from Congress after filibuster reform that would have proceeded without the need for support from Senators Manchin and Sinema (perhaps because backed by new Democratic Senators from Maine and North Carolina). Had such a bill landed on Biden's desk, he would have come under enormous pressure to sign it, regardless of what his commission said.

If the creation of the commission is therefore useful as a kind of retroactive politics, one still can doubt its utility going forward. And I do.

I have little quarrel with the particular members, nearly all of whom are law professors I know and respect. But the commission is too large to function effectively as a working body. It will be possible to have all 36 members on a single Zoom screen; it will not be possible to have a genuine discussion among them, as opposed to a series of speeches. There is a fair bit of research into the most effective size for a committee. Five is about the minimum. Twelve is about the maximum. One can quibble in that range or a little larger, but no one who has thought about these things believes that a well functioning committee should have as many as 36 members.

In government and other settings, a swollen commission/committee typically reflects one or both of two phenomena: first, if serving on the committee is seen as an honor or perk, there will be a clamor for membership; second, pressure to make a committee representative across a wide range of criteria will also swell membership. Neither phenomenon clearly explains the size of this commission.

As for the honor, I can't speak for others, but as someone with roughly the same credentials as most of the members, I'm frankly relieved that I wasn't asked to serve. If there were a realistic chance that the commission would propose some substantial reform that could then be enacted, it could be an honor or at least a patriotic duty to serve on it, but given how unlikely that is, the exercise will mostly distract the members from other tasks. Meanwhile, the fact of selection could be seen as a kind of recognition, but, distinguished as the list members are, it would be fairly easy to replace them several times over with equally distinguished members. Do university professors and law school deans really need "served on a presidential commission that issued a report that was duly ignored" as feathers in their caps?

Meanwhile, there does appear to have been some effort to create a commission that is diverse along racial, gender, and (to a lesser but non-trivial degree) ideological lines. Maybe the need to avoid tokenism swelled the number of otherwise under-represented minority members, which in turn ballooned the size of the whole commission, but I still think that the size could be cut in half or made even smaller without much of a sacrifice of diversity. Accordingly, I see no good reason for the commission to be as large as it is.

There's a historical irony here. When FDR proposed Court-packing, he used the pretext that the justices were old and thus needed help. The claim was clearly a pretext, however, because increasing the number of justices doesn't appreciably reduce the workload for any one of them. True, if the Court's caseload remains constant, each justice will be assigned fewer majority opinions with more justices; yet that effect is likely counter-balanced by the fact that the addition of more justices makes everything more complicated logistically and increases the number of circumstances in which any individual justice feels a need to write a concurrence or dissent. Anyway, with respect to President Biden's commission, there isn't even the modest benefit of dividing up the work among more people. Thirty-six people cannot co-author a coherent document. My own experience as a co-author, committee chair, committee reporter, etc., suggests that for this sort of thing the optimal number of people among whom to divide the work is in the low single digits.

As for the substance of the commission's work, I don't have a lot to say beyond what I wrote in my Verdict column last fall: Republicans in Congress and conservatives on the commission are not going to accept the framing of the problem as "Republicans have been cheating so we need to expand the Court in response." With even Justice Breyer now deriding Court expansion, it's effectively off the table. At most, we're likely to see a "neutral" proposal like term limits, as Dan Epps explained on this blog. That would be a good idea, all things considered, but given that it would not address the problem that led progressives to call for Court reform in the first place, it's hard to see anyone spending the political capital necessary to get it enacted even if it is proposed. And for that reason, I also think it unlikely that the commission will read its mandate broadly enough to offer any plan of action.

Needless to say, I hope to be proven wrong about the prospects for a bold proposal from the commission and, more importantly, for action on Court reform in Congress. Given the current Court's seeming acceptance of the voter fraud myth and the absurd state-legislatures-alone theory of how election law gets made, implemented, and interpreted, additional Democratic-appointed justices could well be necessary for the Court to uphold the provisions of an even more desperately needed bill that also looks like it can't get enacted by the current Congress--the For the People Act.

I hope to be proven wrong, but I don't expect to be. A bare Democratic majority in Congress cannot find the will to enact legislation to prevent long-term minority rule by a Republican Party still in the thrall of a racist authoritarian who directed a violent mob at Congress itself just over three months ago. There might perhaps be the votes in Congress to repair the nation's crumbling physical infrastructure. Its crumbling institutions of government, not so much.