ICYMI Biden Announced Commission To Study Supreme Court Fixes | WaPo Ed Board Argues For Ending Life Tenure Over Court-Packing

April 12, 2021

On Friday, PRESIDENT JOE BIDEN signed an executive order calling for a commission to examine possible reforms to the Supreme Court and federal judiciary. He followed through on a campaign promise of his to establish a bipartisan commission that would study SCOTUS fixes like expanding the court or setting term limits. The president has already said he’s “not a fan” of court-packing, but he’s put together a commission nonetheless. It’s comprised of 36 members and will be chaired by BOB BAUER, who led the Biden campaign’s legal strategy, and CRISTINA RODRIGUEZ, a Yale Law School professor.

Republican Party leaders were quick to criticize PRESIDENT BIDEN for establishing his Supreme Court commission to study potential reforms. SENATE MINORITY LEADER MITCH MCCONNELL said in a statement, “This faux-academic study of a nonexistent problem fits squarely within liberals’ years-long campaign to politicize the court, intimidate its members, and subvert its independence. This is not some new, serious, or sober pivot away from Democrats’ political attacks on the court. It’s just an attempt to clothe those ongoing attacks in fake legitimacy. It’s disappointing that anyone, liberal or conservative, would lend credence to this attack by participating in the commission.”

The Editorial Board of The Washington Post doesn’t think court-packing is the answer when it comes to fixing the Supreme Court. But term limits? Now term limits are the way to go, it says. “Encouragingly, the broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term. That would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices — thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees. Term limits should be high on Mr. Biden’s commission’s agenda.”

Ian Millhiser with Vox doesn’t think PRESIDENT BIDEN’S Supreme Court commission will end up fixing anything, in part because of how some conservatives have responded to the news of its creation. McConnell and party leaders’ fiery remarks aside, Millhiser notes the commission seems to have actually come as a comfort to some who may have been worried Biden might try to diminish the Republican Party’s influence over the judiciary. Even members of the Federalist Society released statements of support on Friday. Millhiser writes, “With so many prominent members of the Federalist Society praising the commission right out the gate, it’s clear that conservatives do not feel threatened by this commission. And the justices themselves are just as capable of looking at the list of names that Biden picked and seeing that this commission is unlikely to support significant reforms.”

Just before the weekend, justices issued a split 5-4 decision lifting California’s restrictions on religious gatherings in private homes — the latest in a string of orders they’ve handed down striking down public health orders relating to combatting COVID-19 since AMY CONEY BARRETT joined the bench. California had prohibited gathers of people from more than three households in order to help slow the spread of the coronavirus. The conservative majority said California violated the Constitution by disfavoring prayer meetings, and it wasn’t afraid to get a little testy in its unsigned opinion: “This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s Covid restrictions on religious exercise.”

The Supreme Court’s conservative majority (minus CHIEF JUSTICE ROBERTS) said in its opinion in the California case regarding pandemic-related health restrictions, “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants.” But JUSTICE ELENA KAGAN wrote in a dissent joined by JUSTICES BREYER and SOTOMAYOR that the majority’s comparisons were miscalculated. “California limits religious gatherings in homes to three households. If the state also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the state does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.” She also noted that “the law does not require that the state equally treat apples and watermelons.”

The Editorial Board of The Wall Street Journal had positive things to say about the Supreme Court slapping down “another California pandemic diktat on the freedom of worship.” But it also had some not-so-nice things to say about lower courts like the Ninth Circuit which has been overruled by SCOTUS five times over pandemic-related restrictions impacting religious services. The Editorial Board suggested, “The willfulness of the lower courts in defying the high court underscores how much religious liberty needs protecting against the militant secular values that now dominate American public life.”

Dial 4-1-1 and Joan Biskupic with CNN is here to tell you the Supreme Court plans to close out its term as it began: with oral arguments taking place remotely. Justices will continue teleconferencing their hearings, in keeping with COVID-19 public health guidance. Biskupic reports, “The justices have not conducted arguments in their courtroom since March 2020, when the pandemic seized the country. They first tried the teleconference alternative last May. The format lacks the lively and substantive exchanges that can occur in the courtroom. But the teleconference format has been accompanied by livestreaming, allowing people across the country to hear for the first time — as it happens — America’s highest court at work.”