The Corner

Law & the Courts

Any Court-Reform Commission Would Be a Sham

At long last, Joe Biden has given an answer on whether he will support a Democratic push to pack the Supreme Court. Well, not exactly, but you can be assured that he’ll follow the science. According to Biden, the courts are “getting out of whack.” He doesn’t explain how, but we can safely assume that by this, he means that there will be an originalist majority appointed by Republican presidents sitting on the Supreme Court; conservative control at any level of government, within any institution, means that things are out of whack.

To fix this nameless problem, Biden promises “to put together a national commission of bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal/conservative” that can provide him with “recommendations as to how to reform the court system.” Perhaps these experts will recommend that Biden pack the Court. Perhaps they will, as Biden suggests, recommend reforms that “go well beyond packing,” such as taking away justices’ life tenure. In any case, I doubt that any of the Republican or conservative scholars who accept the premise that our Article III institutions are illegitimate because there are too many Republican-appointed judges on the bench will fairly represent the conservative perspective on this issue.

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